PSYCHOSES

MARCUS N. FULTON · 2026 · Case ID: A26038473

MIXED

Summary

The veteran, who served honorably in the Army from November 1978 to November 1986, appeals the denial of increased ratings for bilateral hip strain and bilateral knee strain, and seeks a compensable rating for bilateral hip impairment and bilateral hip strain with limitation of extension. The Board granted a 50 percent rating for the psychiatric disability, finding the veteran's symptoms of disturbed motivation and mood, and difficulty in work and social relationships, met the criteria for this evaluation, resolving reasonable doubt in his favor. However, the Board denied higher ratings for the psychiatric condition, finding the evidence did not support deficiencies in most areas of life. For the bilateral hip conditions, the Board denied increased ratings, noting the veteran's range of motion limitations did not meet the criteria for higher evaluations under the applicable diagnostic codes, despite reports of pain and flare-ups. The Board also denied a compensable rating for hip impairment, as the veteran could cross his legs and rotation limitations did not meet the criteria. For bilateral knee strain, the Board denied increased ratings, as the veteran's flexion and extension limitations, and lack of significant instability or need for assistive devices, did not meet the criteria for higher than 10 percent under DC 5260. However, the Board granted a separate 10 percent rating for bilateral knee instability under DC 5257, finding slight instability throughout the appeal period, resolving reasonable doubt in the veteran's favor. The claim for bilateral hearing loss was remanded for the VA to obtain and associate audiogram records.

Rationale

Symptoms of disturbed motivation and mood; Difficulty in establishing and maintaining effective work and social relationships; Resolved reasonable doubt in favor of the veteran

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210608-166176

Full Decision Text

Citation Nr: A26038473
Decision Date: 04/24/26 Archive Date: 04/24/26

DOCKET NO. 210608-166176
DATE: April 24, 2026

ORDER

Entitlement to an initial 50 percent rating for a psychiatric disability is granted.

Entitlement to an initial rating in excess of 10 percent for bilateral hip strain with limitation of flexion is denied.

Entitlement to an initial compensable rating for bilateral hip impairment is denied.

Entitlement to an initial compensable rating for bilateral hip strain with limitation of extension is denied.

Entitlement to a rating in excess of 10 percent for bilateral knee strain is denied.

Entitlement to separate 10 percent ratings for bilateral knee instability is granted.

REMANDED

Entitlement to a compensable evaluation for bilateral hearing loss is remanded.

FINDINGS OF FACT

1. The Veteran's psychiatric disability more nearly approximates occupational and social impairment with reduced reliability and productivity but has not at any time more nearly approximated occupational and social impairment with deficiencies in most areas.

2. The Veteran's bilateral hip flexion is not manifested by flexion limited to 30 degrees.

3. The Veteran's bilateral hip impairment of the thigh is not manifested by limitation of rotation of the thigh cannot toe-out more than 15 degrees or limitation of adduction of the thigh with an inability to cross legs.

4. The Veteran's bilateral hip extension is not manifested by extension limited to five degrees.

5. The Veteran's bilateral knee strain with limited flexion does not manifest with flexion limited to 30 degrees.

6. Throughout the appeal period, the Veteran's bilateral knee disability has manifested in mild instability.

CONCLUSIONS OF LAW

1. The criteria for an initial 50 percent rating for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.126, 4.130, Diagnostic Code (DC) 9433.

2. The criteria for a rating in excess of 10 percent bilateral hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), DC 5252.

3. The criteria for a compensable rating for bilateral hip impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), DC 5253.

4. The criteria for a compensable rating thereafter for left hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), DC 5251.

5. The criteria for an initial disability rating in excess of 10 percent for service-connected bilateral knee strain with limited flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.71a, DC 5260.

6. The criteria for entitlement to a separate 10 percent rating for bilateral knee instability have been met. 38 U.S.C. §§ 1155, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably from November 1978 to November 1986.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In a June 2021 VA Form 10182, the Veteran requested the hearing lane of the rating decisions under the Veterans Appeals Improvement Modernization Act of 2017 (AMA). Under the Board Hearing Docket, the Board is limited to review of the evidence in the record up to and until the date of the rating decision on appeal and any evidence submitted at the Board hearing and within 90 days following the hearing. See 38 C.F.R. § 20.202 (b).

In December
November 1978 to November 1986.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In December 2024, the Veteran attended a hearing with a Veterans Law Judge (VLJ); a transcript of the hearing is of record.

INCREASED RATINGS

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating 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.

The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997
the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40.

1. Entitlement to an initial 50 percent rating for a psychiatric disability is granted.

The Veteran contends entitlement to a rating in excess of 30 percent for his psychiatric disability.

Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when a veteran's psychiatric disorder causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent evaluation is assigned when a veteran's psychiatric disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. Id.

A 100 percent rating is assigned when a veteran's psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id.

In an April 2021 VA examination, the examiner found the Veteran's disability amounted to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported ongoing social functioning problems were reported related to irritability. The examiner noted symptoms of depressed mood and anxiety of moderate severity and clinically significant functional impairments.

In an August 2020 statement, the Veteran's wife discussed the depression, frustration, and anger the Veteran experienced due to his physical disabilities. She noted that he used to enjoy going out and experiencing new things but it was now difficult to get him out of the house unless it is to go to work or the grocery store.

Based on the evidence presented, and resolving reasonable doubt in his favor, the Board finds an initial 50 percent rating for his psychiatric disability is warranted. For the appeal period, the Veteran reported disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. These symptoms are explicitly contemplated by the criteria for a 50 percent rating.

The Board finds that the Veteran does not meet the criteria for a 70 percent rating. The evidence weighs persuasively against a finding that his psychiatric symptoms are of the nature, severity, and frequency warranted for a rating higher than 50 percent. Psychiatric symptoms causing deficiencies in most areas, not some areas of life would warrant a 70
it is to go to work or the grocery store.

As described by the symptoms outlined above, the Veteran has not demonstrated deficiencies in judgment or thinking caused by his psychiatric disability that would warrant a higher rating. The Veteran did not demonstrate disorientation, delusions, or impairments in thought processes or content, suicidal ideation, or obsessional rituals that interfere with routine activities. The Veteran reported depression, sleep issues, an inability to enjoy activities he usually enjoys, and an inability to make friends. The above symptoms are contemplated in a 50 percent rating, and there is no indication that they or cause "average impairment of earning capacity" for a 70 percent rating. The observations of the Veteran's functioning during the examinations do not suggest that depression is affecting his ability to function independently, appropriately, and effectively. Regarding neglect of personal hygiene and intermittent inability to perform activities of daily living, the evidence of record, overall, does not tend to support this level of impairment in self-care. Finally, during the appeal period, the Veteran's psychiatric disability has not been shown to cause deficiencies in work or school. The evidence shows that the Veteran's psychiatric symptoms cause deficiencies in some areas of life, such as mood, but not most areas. The frequency and severity of his symptoms are represented by occupational and social impairments with reduced reliability and productivity.

In sum, the Board finds that the balance of the evidence supports the assignment of a 50 percent rating for his psychiatric disability throughout the claim period. The Board has considered the applicability of the benefit-of-the-doubt doctrine and has applied it in awarding that rating. However, regarding entitlement to even higher ratings, as the evidence is persuasively against the claim, that doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Entitlement to an initial rating in excess of 10 percent for bilateral hip strain with limitation of flexion is denied.

3. Entitlement to an initial compensable rating for bilateral hip impairment is denied.

4. Entitlement to an initial compensable rating for bilateral hip strain with limitation of extension is denied.

The Veteran's contends that his bilateral hip disability is more severe than the ratings assigned. However, as outlined below, the Board finds that increased ratings for the Veteran's bilateral hip disability is not warranted.

The Veteran is currently in receipt of an evaluation of 10 percent for bilateral limitation of flexion under DC 5252, a noncompensable evaluation for limitation of extension under DC 5251, and a noncompensable initial evaluation for limitation of flexion under DC 5252. Disabilities of the hip are evaluated under a number of DCs.

DC 5250 deals with ankylosis of the hip joint. As that finding is not present for either hip in this matter, it shall not be addressed further.

DC 5251 for limitation of extension of the thigh assigns a maximum 10 percent evaluation for limitation of thigh extension to 5 degrees or less.

DC 5252 for limitation of flexion of the thigh assigns a 10 percent rating for flexion limited to 45 degrees, a 20 percent rating for flexion limited to 30 degrees, a 30 percent rating for flexion limited to 20 degrees, and a maximum 40 percent evaluation where thigh flexion is limited to 10 degrees.

DC 5253 evaluates impairment of the thigh and assigns a 10 percent rating for limitation of rotation of the thigh such that the veteran could not toe-out more than 15 degrees, or where adduction is limited such that the veteran could not cross his or her legs. A 20 percent rating is assigned where abduction is limited such that motion is lost beyond 10 degrees.

DC 5254 assigns an 80 percent evaluation for flail joint of a hip. As that finding is not present for either hip in this matter, it shall not be addressed further.

Finally, DC 5255 evaluates impairment of the femur, including malunion, fracture of the surgical neck, and fracture of the shaft, assigning ratings based on the severity of the sequelae of those injuries. The record does not indicate the Veteran is beset by those
of the thigh such that the veteran could not toe-out more than 15 degrees, or where adduction is limited such that the veteran could not cross his or her legs. A 20 percent rating is assigned where abduction is limited such that motion is lost beyond 10 degrees.

DC 5254 assigns an 80 percent evaluation for flail joint of a hip. As that finding is not present for either hip in this matter, it shall not be addressed further.

The Veteran underwent a VA examination in April 2021. The Veteran noted moderate to severe flare-ups several times per week. The examiner observed range of motion to measure to 120 degrees in flexion, to 25 degrees in extension, to 40 degrees in abduction, to 20 degrees in adduction, to 55 degrees in external rotation, and to 35 degrees in internal rotation, bilaterally, with pain noted in all ranges. Limitation in passive adduction did not prevent the Veteran from crossing his legs. There was evidence of pain in active and passive motion. There was no evidence of crepitus. The Veteran able to perform repetitive-use testing without additional loss of function or range of motion on right. Veteran able to perform repetitive-use testing with additional loss of function or range of motion estimated to flexion to 115, extension to 20, abduction to 35, adduction to 15, external rotation to 50 and internal rotation to 30, on the left. The Veteran was not examined after repeated use over time but pain suggests additional loss of function or range of motion estimated in flexion to 115, extension to 20, abduction to 35, adduction to 15, external rotation to 50 and internal rotation to 30. The Veteran was not examined during a flare-up but pain suggests additional loss of function or range of motion estimated in flexion to 115, extension to 20, abduction to 35, adduction to 15, external rotation to 50 and internal rotation to 30. There was no noted muscle atrophy, ankylosis, surgery, or assistive devices.

The evidence of record demonstrates that a rating in excess of 10 percent for bilateral hip limitation of flexion is not warranted. To obtain a higher rating it is necessary to show flexion of the thigh limited to 30 degrees. Considering the findings, the worst the degree of limitation of flexion is 115 degrees. Therefore, a rating in excess of 10 percent for bilateral hip flexion is not warranted. DC 5252.

The evidence of record demonstrates compensable rating for bilateral hip extension is not warranted. To warrant a compensable rating the evidence must show extension of the thigh limited to 5 degrees. Considering the medical findings, the Veteran's extension was no worse than 20 degrees. Therefore, a compensable rating for bilateral hip extension is not warranted. DC 5251.

Finally, the Board finds that a compensable rating for the Veteran's right hip impairment of the thigh is not warranted. To warrant a compensable rating, the evidence must show limitation of rotation of the thigh that cannot toe-out more than 15 degrees or an inability to cross legs. Here, the medical evidence demonstrates the Veteran to be able to cross his legs and that external rotation is limited to, at worst, 50 degrees external rotation, bilaterally. Therefore, a compensable rating for right hip impairment of the thigh is not warranted.

5. Entitlement to a rating in excess of 10 percent for bilateral knee strain is denied.

The Veteran contends entitlement to an initial rating in excess of 10 percent for bilateral knee strain. The Veteran's bilateral knee strain is rated at 10 percent pursuant to 38 C.F.R. § 4.71a, DC 5260.

DC 5260, limitation of flexion of a leg, provides a 10 percent rating if flexion is limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.

DC 5261, limitation of extension of a leg, provides a 10 percent rating when extension is limited to 10 degrees and a 20 percent rating when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees and a 40 percent rating for extension limited to 30 degrees. A maximum 50 percent rating applies when extension is limited to 45 degrees.
if flexion is limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.

Normal ROM of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004.

The Veteran attended a VA examination in April 2021. He was diagnosed with bilateral knee strain. The Veteran's active range of motion (ROM) bilaterally was noted to be to 100 degrees in flexion and to 0 degrees in extension. Passive ROM was the same as active. There was evidence of crepitus, bilaterally, and no objective evidence of localized tenderness. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional functional loss or range of motion after three repetitions. He was not examined immediately after repeated use over time but the procured but evidence suggests pain limits functional ability with rom estimated to 95 degrees in flexion and 0 degrees in extension. The Veteran endorsed flare-ups of the knees that he described as moderate to severe several times a week. He was not examined during flare-up but evidence suggests pain limits functional ability with rom estimated to 95 degrees in flexion and 0 degrees in extension. There were no additional contributing factors of disability to include muscle atrophy or ankylosis. The Veteran did not require a prescription of any assistive device for ambulation. The Veteran did not have recurrent patellar instability.

The medical evidence of record does not show the Veteran to have flexion limited to 30 degrees. The lay and medical evidence reflects no worse than 0 degrees of extension and 90 degrees of flexion. After three repetitions and repetitive movement over time, the Veteran did not show additional functional loss or range of motion. There is no lay or medical description of further limited motion in flexion or extension. As such, the criteria for a rating in excess of 10 percent under either DC 5260 have not been met or more nearly approximated.

The Board has considered other applicable diagnostic codes when determining the appropriate rating for the Veteran's knees, including the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59. Specifically, the Board has considered the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's functional impairment; the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.59 concerning painful motion. DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995); Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As applied, the Veteran has not demonstrated functional impairment, loss of endurance, functional loss, pain (including on flare-ups), weakened movement, fatigability, incoordination, or painful motion resulting from his bilateral knee disability.

In sum, the Board finds that the most appropriate disability rating for the Veteran's bilateral knee disability with limitation of flexion is 10 percent pursuant to DC 5260. As such, his claim is denied

6. Entitlement to separate 10 percent ratings for bilateral knee instability is granted.

The Board finds that a separate rating for the bilateral knee disability is warranted based on instability under DC 5257.

During the pendency of the appeal, DC 5257, which assigns ratings based on other impairment of knee, was amended effective February 7, 2021.
, functional loss, pain (including on flare-ups), weakened movement, fatigability, incoordination, or painful motion resulting from his bilateral knee disability.

6. Entitlement to separate 10 percent ratings for bilateral knee instability is granted.

The Board finds that a separate rating for the bilateral knee disability is warranted based on instability under DC 5257.

During the pendency of the appeal, DC 5257, which assigns ratings based on other impairment of knee, was amended effective February 7, 2021. 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 of the amendment in question. 38 U.S.C. § 5110(g). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021. Both the old and new rating criteria under DC 5257 will be considered for the period from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied during that period.

Prior to the regulatory change, DC 5257, for other impairment of knee, provides a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257.

From February 7, 2021, the amended DC 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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. A maximum 30 percent rating is warranted 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.

For patellar instability, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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. A maximum 30 percent rating is warranted 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.

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

The Board acknowledges the Veteran's reports of instability. At the April 2021VA examination, the Veteran reported his knees will give out. However, the examiner noted that the Veteran did not report a history of instability or recurrent subluxation of the knee. Additionally, the examiner noted the Veteran did not have recurrent subluxation, or recurrent patellar instability. The examination report shows the Veteran does not regularly require the use of an assistive device.

In light of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence supports a finding of recurrent instability of the bilateral knees
a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

In light of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence supports a finding of recurrent instability of the bilateral knees throughout the period on appeal. See 38 C.F.R. §§ 4.3, 4.7. As such, under the pre-February 7, 2021, rating criteria, a 10 percent is warranted under DC 5257. A 10 percent rating is assigned for slight instability.

Under pre-February 7, 2021, rating criteria, the Board finds that the evidence of record persuasively weighs against a rating higher than 10 percent for bilateral knee instability. Slight is defined as "small of its kind or in amount." See Merriam-Webster online dictionary. The Board has carefully considered the Veteran's reports about instability. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity. In the April 2021 VA examination, the examiner made negative findings for instability or subluxation of the knees. The Board does not find that the evidence demonstrates moderate recurrent subluxation or lateral instability to warrant a higher 20 percent rating for the bilateral knees under the old criteria. A thorough review of the available evidence does not reflect that the Veteran required or was prescribed the use of an assistive device (such as a brace, cane, or walker) during the period here at issue.

Accordingly, the Board finds that the evidence of record supports a separate 10 percent disability rating, for the entire appeal period for instability of the bilateral knees. However, the evidence of record persuasively weighs against a rating in excess of 10 percent for instability of the bilateral knees.

In light of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence supports a finding of recurrent instability of the bilateral knees throughout the period on appeal. See 38 C.F.R. §§ 4.3, 4.7. As such, a 10 percent rating for bilateral knee instability is warranted.

REASONS FOR REMAND

Under the Appeals Modernization Act (AMA), the Board must remand a claim to correct an error by AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A if the error occurred prior to the RO decision on appeal. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other RO error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a).

1. Entitlement to a compensable evaluation for bilateral hearing loss is remanded.

The Veteran seeks a compensable rating for his bilateral hearing loss..

Review of VA treatment records reveal that the Veteran has had at least one audiology examination in addition to his VA examination. See e.g., February 2020 VA Treatment Note. However, the details are not associated with the Veteran's claims file.

This record is within VA's constructive possession. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA has a duty to assist in obtaining sufficiently identified VA medical records, regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016); see also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan).

The matters are REMANDED for the following actions:

1. Obtain and associate with the claims file a copy of any audiogram, to include the February 2020 audiogram referenced in the Veteran's VA treatment records.

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Love, Kelsey

The Board's decision in this case is binding only with respect to
of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016); see also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan).