Case 23067195

JARRETTE A. MARLEY · 2023 · Case ID: 23067195

MIXED

Summary

The veteran, who served in the United States Air Force from February 1967 to June 1988, appeals a May 2017 rating decision. The veteran sought earlier effective dates for several granted conditions, but explicitly withdrew these claims during a March 2022 hearing. The Board dismissed these withdrawn issues. The veteran also sought increased ratings for GERD, degenerative lumbar spinal stenosis, left lower extremity radiculopathy, right lower extremity radiculopathy, and right knee osteoarthritis. The Board granted an initial 30% rating for GERD, 40% for degenerative lumbar spinal stenosis, 20% for left lower extremity radiculopathy, 20% for right lower extremity radiculopathy, and 20% for right knee osteoarthritis, finding these ratings met the criteria throughout the appeal period. The Board also granted a separate 10% rating for right knee instability, finding the veteran's testimony credible and approximating the criteria for slight instability. The case was remanded for a new VA examination to assess the current severity of bilateral hearing loss, as the veteran reported worsening symptoms since the last exam. Additionally, the issue of TDIU was remanded, as it is intertwined with the granted and remanded matters, and the veteran credibly reported service-connected disabilities impact his ability to secure gainful employment.

Rationale

Forward flexion of 25 degrees meets 40% criteria; Grant satisfies appeal

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

20-11 751

Full Decision Text

Citation Nr: 23067195
Decision Date: 12/21/23 Archive Date: 12/21/23

DOCKET NO. 20-11 751
DATE: December 21, 2023

ORDER

Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for degenerative lumbar spinal stenosis is dismissed.

Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for right knee osteoarthritis is dismissed.

Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for bilateral hearing loss is dismissed.

Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for gastroesophageal reflux disease (GERD) is dismissed.

Effective January 28, 2016, an initial rating of 30 percent for GERD is granted.

Effective January 28, 2016, an initial rating of 40 percent for degenerative lumbar spinal stenosis is granted.

Effective September 19, 2018, an initial rating of 20 percent for left lower extremity radiculopathy is granted.

Effective September 19, 2018, an initial rating of 20 percent for right lower extremity radiculopathy is granted.

Effective January 28, 2016, an initial rating of 20 percent for right knee osteoarthritis is granted.

Effective January 28, 2016, a separate rating of 10 percent for right knee instability is granted.

REMANDED

Entitlement to an initial compensable rating for bilateral hearing loss is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. During the March 2022 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew the issues of entitlement to an effective date earlier than January 28, 2016, for the award of service connection for degenerative lumbar spinal stenosis, right knee osteoarthritis, bilateral hearing loss and GERD.

2. Throughout the appeal period, the Veteran's GERD was manifested by symptoms or impairment productive of considerable impairment of health.

3. Throughout the appeal period, the Veteran's degenerative lumbar spinal stenosis has demonstrated forward flexion less than 30 degrees.

4. The Veteran's left lower extremity radiculopathy is characterized by moderate incomplete paralysis of the sciatic nerve.

5. The Veteran's right lower extremity radiculopathy is characterized by moderate incomplete paralysis of the sciatic nerve.

6. The Veteran's right knee osteoarthritis approximates flexion limited to 30 degrees.

7. The Veteran's right knee symptoms reflect slight lateral instability or recurrent subluxation.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal regarding entitlement to an effective date earlier than January 28, 2016, for the award of service connection for degenerative lumbar spinal stenosis, right knee osteoarthritis, bilateral hearing loss and GERD, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. Effective January 28, 2016, the criteria for an initial rating of 30 percent for GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Codes 7399-7346.

3. Effective January 28, 2016, the criteria for an initial rating of 40 percent for degenerative lumbar spinal stenosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5242.

4. Effective September 19, 2018, the criteria for an initial rating of 20 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124, Diagnostic Code 8520.

5. Effective September 19, 2018, the criteria for an initial rating of 20 percent for right lower extremity radiculopathy have been met. 38 U
. §§ 3.102, 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5242.

5. Effective September 19, 2018, the criteria for an initial rating of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124, Diagnostic Code 8520.

6. Effective January 28, 2016, the criteria for an initial rating of 20 percent for right knee osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260.

7. Effective January 28, 2016, the criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from February 1967 to June 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

During the pendency of the appeal, a March 2020 rating decision granted an initial increased rating of 10 percent for GERD, effective from January 28, 2016, and an initial rating of 40 percent for degenerative lumbar spinal stenosis, effective from February 12, 2020. The Veteran's claim for an initial increased rating for GERD has been characterized accordingly.

The Veteran testified before the undersigned Acting Veterans Law Judge in a March 2022 virtual hearing. During the March 2022 hearing, the Veteran and his attorney indicated that they were satisfied with the currently assigned 40 percent rating for his degenerative lumbar spinal stenosis, effective from February 12, 2020. The Veteran's claim for an initial increased rating for his degenerative lumbar spinal stenosis has been characterized to reflect the initial 10 percent rating prior to February 12, 2020.

Earlier Effective Date Claims

1. Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for degenerative lumbar spinal stenosis.

2. Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for right knee osteoarthritis.

3. Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for bilateral hearing loss.

4. Entitlement to an effective date earlier than January 28, 2016, for the award of service connection for GERD.

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made on the record at a hearing by the appellant or by his or her authorized representative. Id. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See Acree v. O'Rourke, 891 F.3d 1009, 1013-14 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

In the present case, the Veteran, at his January 2022 Board hearing, the Veteran withdrew from appeal the issues of entitlement to an effective date earlier than January 28, 2016, for the award
made on the record at a hearing by the appellant or by his or her authorized representative. Id. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See Acree v. O'Rourke, 891 F.3d 1009, 1013-14 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

In the present case, the Veteran, at his January 2022 Board hearing, the Veteran withdrew from appeal the issues of entitlement to an effective date earlier than January 28, 2016, for the award of service connection for degenerative lumbar spinal stenosis, right knee osteoarthritis, bilateral hearing loss and GERD. Accordingly, he has withdrawn the appeal as to these issues and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal regarding his claims and they are dismissed.

Increased Rating Claims

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

5. Entitlement to an initial rating in excess of 10 percent for GERD.

The Veteran seeks an initial rating higher than the currently assigned 10 percent rating for GERD. In support, the Veteran claims that he experiences persistent epigastric distress with pain, pyrosis, reflux, regurgitation, sleep disturbance and vomiting. See February 2020 VA esophageal conditions examination; see also March 2022 Board hearing.

The Board notes that as there is no specific Diagnostic Code for GERD, the RO has rated the Veteran's GERD by analogy under Diagnostic Codes 7399-7346, for hiatal hernia. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code (7399) requires the use of an additional Diagnostic Code to identify the basis for the rating assigned (7346). The provisions of 38 C.F.R. § 4.27 provide that when an unlisted disability requires rating by analogy, the code will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the body part or system involved, and the last two digits will be "99." Here, the hyphenated Diagnostic Code indicates that an unlisted gastrointestinal condition (Diagnostic Code 7399) is rated under the criteria for hiatal hernia (Diagnostic Code 7346). See 38 C.F.R. § 4.20.

Under Diagnostic Code 7346, a 10 percent rating is assigned with two or more of the symptoms for the 30 percent evaluation of less severity; a 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with
that an unlisted gastrointestinal condition (Diagnostic Code 7399) is rated under the criteria for hiatal hernia (Diagnostic Code 7346). See 38 C.F.R. § 4.20.

Under Diagnostic Code 7346, a 10 percent rating is assigned with two or more of the symptoms for the 30 percent evaluation of less severity; a 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.

The Veteran's February 2020 VA esophageal conditions examination report reflects symptoms of persistently recurrent epigastric distress with substernal pain, pyrosis, reflux, regurgitation, sleep disturbance and vomiting.

As there is competent evidence of epigastric distress with reflux, regurgitation, pyrosis, substernal pain, sleep disturbance and vomiting, as well as the Veteran's testimony as to his symptoms, the evidence is in approximate balance, and therefore the benefit-of-the-doubt rule is applicable. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Accordingly, the Board finds that the criteria for an initial 30 percent rating under Diagnostic Code 7346 is met for the Veteran's GERD throughout the appeal period.

Inasmuch as the Board is awarding an initial 30 percent rating for the Veteran's GERD throughout the appeal period, the Veteran and his attorney testified at the March 2022 Board hearing that such would satisfy the appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board finds that this grant represents a complete grant of the benefits sought on appeal and additional discussion of whether the Veteran meets the criteria for a higher schedular rating for his GERD is not warranted.

6. Entitlement to an initial rating in excess of 10 percent for degenerative lumbar spinal stenosis.

As noted above in the Introduction, the Veteran is currently assigned an initial 10 percent rating for his degenerative lumbar spinal stenosis effective from January 28, 2016, under Diagnostic Code 5242. The Veteran seeks an initial rating in excess of 10 percent throughout the appeal period.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Plate V.

There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. (5) Unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine, is fixed in flexion or extension. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a.

As there is no evidence of incapacitating episodes based on the lumbar spine, and intervertebral disc syndrome of the lumbar spine has not been found during the appeal period, such criteria is not applicable to the Veteran's claim and will not be addressed further. See February 2020 VA back conditions examination.

After a review of the evidence of record, the Board finds that the Veteran is entitled to an initial rating of 40 percent throughout the appeal period.

For the period prior to February 12, 2020, the only adequate examination of record is the February 2020 VA back conditions examination. Therefore, the Board will solely address the findings of the February 2020 VA examination. On February 2020 VA examination, the estimated range of motion on forward flexion was 25 degrees.

Under the General Rating Formula, forward flexion of the thoracolumbar spine less than 30 degrees warrants a 40 percent rating. Hence, entitlement to an initial 40 percent rating throughout the appeal period for the Veteran's degenerative lumbar spinal stenosis is warranted.

Inasmuch as the Board is awarding an initial 40 percent rating for the Veteran's degenerative lumbar spinal stenosis throughout the appeal period, the Veteran and his attorney testified at the March 2022 Board hearing that such would satisfy the appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board finds that this grant represents a complete grant of the benefits sought on appeal and additional discussion of whether the Veteran meets the criteria for a higher schedular rating for his degenerative lumbar spinal stenosis is not warranted.

7. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy.

The Veteran seeks an initial rating in excess of 10 percent for his left lower extremity radiculopathy. The Veteran's left lower extremity radiculopathy is rated under Diagnostic 8520, which provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis of the sciatic nerve, 40 percent for moderately severe incomplete paralysis of the sciatic nerve, and 60 percent for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

After a review of the evidence of record, the Board finds that the Veteran's left lower extremity radiculopathy approximates moderate incomplete paralysis. On February 2020 VA examination, the examiner found the Veteran had moderate left lower extremity intermittent pain and numbness, and indicated the Veteran's left lower extremity was moderate in severity.

Inasmuch as the Board is awarding an initial 20 percent rating for the
" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Inasmuch as the Board is awarding an initial 20 percent rating for the Veteran's left lower extremity radiculopathy throughout the appeal period, the Veteran and his attorney testified at the March 2022 Board hearing that such would satisfy the appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board finds that this grant represents a complete grant of the benefits sought on appeal and additional discussion of whether the Veteran meets the criteria for a higher schedular rating for his left lower extremity radiculopathy is not warranted.

8. Entitlement to a separate rating for right lower extremity radiculopathy.

The Veteran seeks a separate compensable rating for right lower extremity radiculopathy.

September 2018 treatment records diagnosed recurrent lower back pain radiating down the back of the legs.

On February 2020 VA examination, the examiner found the Veteran had moderate right lower extremity intermittent pain and numbness, but found the Veteran's right lower extremity was mild in severity.

Inasmuch as the February 2020 VA examiner found the Veteran had the same level of severity of symptomatology for his right and left lower extremity radiculopathy, and the Board has already awarded an initial 20 percent rating for the Veteran's left lower extremity radiculopathy, the Board finds that a separate 20 percent rating is also warranted for the Veteran's right lower extremity radiculopathy, effective September 19, 2018.

Inasmuch as the Board is awarding an initial 20 percent rating for the Veteran's right lower extremity radiculopathy throughout the appeal period, the Veteran and his attorney testified at the March 2022 Board hearing that such would satisfy the appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board finds that this grant represents a complete grant of the benefits sought on appeal and additional discussion of whether the Veteran meets the criteria for a higher schedular rating for his right lower extremity radiculopathy is not warranted.

9. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis.

The Veteran's right knee osteoarthritis is rated 10 percent disabling under Diagnostic Codes 5003-5260 (for arthritis and limitation of motion of the right knee) throughout the appeal period.

Under Diagnostic Code 5260, flexion limited to 45 degrees is assigned a 10 percent rating, flexion limited to 30 degrees is assigned a 20 percent rating, and flexion limited to 15 degrees is assigned a 30 percent rating. Normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II.

Effective February 7, 2021, the diagnostic codes pertaining to the knee and leg were amended. For purposes of this decision, the rating schedule for Diagnostic Codes 5260 and 5261 did not change, and the other potential amended diagnostic codes are not applicable in this case. See 85 Fed. Reg. 76,453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85,523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8,142 (Feb. 4, 2021)).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion
8,142 (Feb. 4, 2021)).

Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

Recently, in Chavis v. McDonough, 34 Vet. App. 1, 20 (2021), the United States Court of Appeals for Veterans Claims (Court) held that a claimant may obtain "an evaluation based on ankylosis of a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."

The Veteran underwent a VA examination in April 2017. However, the Board finds this examination to be inadequate as the examiner did not fully address the Veteran's flare-ups, active and passive motion, and weight and non-weight bearing. See Sharp v. Shulkin,29 Vet. App. 26(2017); Correia v. McDonald, 28 Vet. App. 158 (2016).

In February 2020, the Veteran was provided another VA examination. Range of motion studies show the Veteran's limitation of flexion was 50 degrees, and estimated to be 40 degrees with flare-ups. The examination was not conducted during a flare-up. Physical examination of the right knee revealed swelling, disturbance of locomotion, interference with standing, severe flare ups, recurrent effusion and pain in non-weightbearing and passive range of motion. See February 2020 VA knee and lower leg conditions examination.

After a review of the evidence of record, including the Veteran's testimony as to the frequency and severity of his flare-ups, The Board finds that the Veteran's right knee approximates the criteria for an initial 20 percent rating for limitation of flexion throughout the appeal period.

Inasmuch as the Board is awarding an initial 20 percent rating for the Veteran's right knee osteoarthritis based on limitation of motion throughout the appeal period, the Veteran and his attorney testified at the March 2022 Board hearing that such would satisfy the appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board finds that this grant represents a complete grant of the benefits sought on appeal and additional discussion of whether the Veteran meets the criteria for a higher schedular rating for his right knee osteoarthritis is not warranted.

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

The Veteran seeks a separate rating for right knee instability. See March 2022 Board hearing.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate" and "severe" are not defined in the Rating Schedule.
the criteria for a higher schedular rating for his right knee osteoarthritis is not warranted.

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

The Veteran seeks a separate rating for right knee instability. See March 2022 Board hearing.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate" and "severe" 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 decision is "equitable and just." 38 C.F.R. § 4.6.

Effective February 7, 2021, the new regulation changed Diagnostic Code 5257 from the subjective terms to detailed types of instability resulting in specific types of impairments.

Under the new criteria for Diagnostic Code 5257, recurrent subluxation or instability is rated at 30 percent for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; 20 percent for one of the following (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and rated at 10 percent for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

Patellar instability under Diagnostic Code 5257 is rated at 30 percent for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; at 20 percent for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; and at 10 percent for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

After a review of the evidence of record, the Board finds that the Veteran is entitled to a separate 10 percent rating for right knee instability throughout the appeal period.

In English v. Wilkie, the Court determined that Diagnostic Code 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that [Diagnostic Code]." 30 Vet. App. 347, 349 (2018). The Court further held that "[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [Diagnostic Code 5257] without supporting its conclusion with an adequate statement of reasons or bases." Id.

Here, although the medical evidence of record is silent for any objective evaluation reflecting right knee instability, resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for a separate 10 percent rating for slight instability is warranted throughout the appeal period. In reaching this finding, the Board notes that at the March 2022 Board hearing, the Veteran testified that he experiences right knee instability causing gait instability, and that he wears a brace. The Board finds the Veteran's testimony of right knee instability to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board observes that the
of reasons or bases." Id.

REASONS FOR REMAND

11. Entitlement to an initial compensable rating for bilateral hearing loss.

The Board notes that the most recent VA examination was conducted in February 2020. At the March 2022 Board hearing, the Veteran testified that his hearing loss had worsened since the most recent VA examination. Therefore, the Board finds that this matter must be remanded for a contemporaneous VA examination to assess the current nature, extent and severity of his bilateral hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

The Board notes that the most recent VA treatment records before the Board are dated from March 2020. Records of his VA treatment are constructively before VA. As such, remand is necessary to obtain updated medical records. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

12. Entitlement to TDIU.

The Veteran raised the issue of TDIU during the pendency of this appeal and is considered part and parcel of the higher rating claim pursuant under Rice v. Shinseki, 22 Vet. App. 447 (2009). In support, the Veteran credibly reported that his service-connected disabilities impact his ability to secure or follow a substantial gainful occupation. See March 2022 Board hearing; April 2022 VA Form 21-8940. The Veteran's TDIU claim remains inextricably intertwined with the granted and remanded matters in this decision. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The Veteran may submit lay statements to describe the impact of his service-connected disabilities on his ability to secure or follow a substantial gainful occupation during the appeal period.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records dated since March 2020.

2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records.

3. Notify the Veteran that he may submit additional lay statements, to include, from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the severity and impact of his hearing loss condition and the impact of his service-connected disabilities on his ability to secure gainful employment.

The Veteran must be provided an appropriate amount of time to submit this lay and/or medical evidence.

4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his bilateral hearing loss. The claims file should be made available to and reviewed by the examiner. The examiner must encompass pure tone threshold (in decibels) and Maryland CNC testing. In addition to objective test results, the examiner should fully describe the functional effects caused by his hearing disability, including specifically, the impact of such on his employability.

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Marley, Jarrette A.

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.

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