Citation Nr: 21066901 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-14 199 DATE: November 2, 2021 ORDER New and material evidence has been received, and the claim for entitlement for service connection for tinnitus is reopened. New and material evidence has been received, and the claim for entitlement for service connection for bilateral hearing loss is reopened. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial disability rating higher than 10 percent for right knee joint osteoarthritis is denied. Entitlement to an initial disability rating higher than 10 percent for left knee joint osteoarthritis is denied. Entitlement to a separate rating of 10 percent for slight instability of the right knee is granted from September 19, 2017, is granted. Entitlement to a separate rating of 10 percent for slight instability of the left knee is granted from September 19, 2017, is granted. REMANDED Entitlement to service connection for an acquired psychiatric condition is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Since the last, final rating decision dated September 2008, evidence submitted to reopen the claim for service connection for tinnitus is new to the record and pertains to an unestablished fact necessary to substantiate the claim. 2. Since the last, final rating decision dated August 2014, evidence submitted to reopen the claim for service connection for bilateral hearing is new to the record and pertains to an unestablished fact necessary to substantiate the claim. 3. Affording the benefit of the doubt to the Veteran, the Board finds that service connection is warranted for tinnitus. 4. The preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. 5. During the pendency of the appeal, the most probative evidence does not reflect that the Veteran's right knee osteoarthritis was manifested by flexion limited to 30 degrees or less or extension limited to 15 degrees or less, to include after repetitive motion testing, during a flare-up of symptoms, in weight-bearing and non-weight-bearing positions, and on active and/or passive motion. 6. During the pendency of the appeal, the most probative evidence does not reflect that the Veteran's left knee osteoarthritis was manifested by flexion limited to 30 degrees or less or extension limited to 15 degrees or less, to include after repetitive motion testing, during a flare-up of symptoms, in weight-bearing and non-weight-bearing positions, and on active and/or passive motion. 7. Resolving reasonable doubt in favor of the Veteran, the evidence of record is at least in equipoise as to whether the Veteran has experienced slight instability of the right knee from August 22, 2009. 8. Resolving reasonable doubt in favor of the Veteran, the evidence of record is at least in equipoise as to whether the Veteran has experienced slight instability of the left knee from August 22, 2009. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 5. The criteria for entitlement to a disability rating higher than 10 percent for osteoarthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5260. 6. The criteria for entitlement to a disability rating higher than 10 percent for osteoarthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5003-5260. 7. The criteria for an effective date prior to August 22, 2019 for the grant of a separate 10 percent rating, but not more, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257. 8. The criteria for an effective date prior to August 22, 2019 for the grant of a separate 10 percent rating, but not more, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such is raised by the Veteran or the record. In this case, assertions made during the Veteran's November 2020 hearing raise a claim for TDIU. As such, the issue of entitlement to TDIU has been added above and will be addressed in the remand section below. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). New and Material Evidence Service connection for tinnitus was denied in an unappealed September 2008 rating decision. Service connection for bilateral hearing loss was denied in an unappealed August 2014 rating decision. Evidence submitted since those rating decisions includes June 2014 and August 2014 VA tinnitus examinations and a March 2019 VA hearing loss and tinnitus examination and medical opinion wherein the examiner noted the Veteran has left ear hearing loss and that he reported tinnitus started during active service. In addition, the Board observes the addition of the November 2020 hearing transcript wherein the Veteran testified he was exposed to military noise without the use of hearing protection. This newly received evidence is relevant because it specifically concerns the condition being claimed. It is new because it was not previously considered in the September 2008 and August 2014 rating decisions. It is material because it pertains to unestablished facts necessary to substantiate the separate claims of entitlement to service connection for tinnitus and hearing loss - namely, the presence, current nature, and etiology of the claimed disabilities. As this additional evidence is new and material, these claims may be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The merits of these claims are addressed below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. After all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case it is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Entitlement to service connection for tinnitus. Tinnitus is among the chronic disabilities for which a presumption of service connection is warranted if shown to a compensable degree within a year following separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Based on the medical evidence of record, the Board finds the presumption does not apply in this case. The Veteran contends that his tinnitus is related to military noise exposure. Specifically, he reported experiencing tinnitus after working aboard ship and in a shore-based mainframe computer room. See November 2020 hearing transcript. The Veteran's service treatment records (STRs) are silent for complaints about tinnitus or ringing in his ears. However, a July 1981 reference audiogram notes the reference was established following exposure in noise duties. The Board observes that in cases of tinnitus, ringing in the ears is capable of lay observation. As such, a Veteran can ascertain that he has tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that the Veteran has been afforded June 2014, August 2014, and March 2019 VA hearing loss and tinnitus examinations. The June 2014 audiology examination noted the Veteran reported bilateral tinnitus starting in 2009 which has caused some concentration and sleep difficulties. No etiology opinion was noted. The August 2014 hearing loss and tinnitus examination noted the Veteran reported onset of tinnitus, described as constant buzzing, as approximately 1982-1983. The audiologist indicated an etiology opinion was not requested. The March 2019 VA hearing loss and tinnitus examination noted that the Veteran reported the onset of tinnitus in approximately 1984, which he described as "annoying" and "irritating" and interfering with his ability to concentrate and communicate. The audiologist opined that the Veteran's claimed tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. As a rationale, the audiologist noted that in the absence of hearing loss and documented tinnitus during periods of active duty, it is the examiner's opinion that the Veteran's tinnitus was less likely caused by or the result of military noise exposure. Notwithstanding the audiologist's etiology opinion, as indicated above, tinnitus is uniquely capable of lay observation and, unlike hearing loss, is not dependent on specific testing for the finding of a diagnosis. As to noise exposure during service, the Veteran testified during his November 2020 Board hearing that he suffered noise exposure while working aboard ship and in a shore-based mainframe computer room during active service. The Board notes that the Veteran has consistently asserted tinnitus started during active service. The Veteran's lay contentions are thus to be afforded very high probative value. See Charles, supra. Affording the Veteran with the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. The claim, to this extent, is granted. 4. Entitlement to service connection for bilateral hearing loss. Sensorineural hearing loss is also among the chronic diseases presumed related to service if shown as chronic (reliably diagnosed) in service; or, if manifested to a compensable degree within a presumptive period following separation from active service; or, if noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The first question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or manifested to a compensable degree in service or within the applicable presumptive period, or whether a continuity of symptoms has existed since service. The Veteran's service treatment records (STRs) include an August 1979 report of medical history (RMH) for enlistment wherein the Veteran denied hearing loss, or other ear trouble. In an August 1979 report of medical examination (RME), the Veteran's ears were noted normal. Pure tone thresholds, in decibels, were noted as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 5 5 LEFT 5 5 10 10 10 The August 1979 RME does not include speech discrimination results. A June 1981 record noted that ear plugs where issued and there is no ear trouble. The claims file includes a July 1981 reference audiogram that noted hearing protection was issued and used. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 0 LEFT 20 15 15 10 5 No speech discrimination results were noted. A subsequent October 1981 reference audiogram noted no significant threshold shift. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 0 5 5 LEFT 5 0 0 0 0 No speech discrimination results were noted. In an August 1982 RMH for reenlistment, the Veteran denied hearing loss, or other ear trouble. In an August 1982 RME for reenlistment, the Veteran's ears were noted normal. Pure tone thresholds, in decibels, were noted as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 5 10 0 LEFT 10 15 5 10 5 The August 1982 RME does not include speech discrimination results. The STRs also include a May 1986 RMH for separation wherein the Veteran denied hearing loss. In a May 1981 RME for separation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 0 LEFT 0 0 0 0 5 Speech discrimination results were not included. VA treatment records include an August 2014 VA audiology progress record that noted the Veteran was seen in June 2014, but the results were invalid. Puretone threshold results were noted normal in the right ear and normal in the left ear for frequencies between 250-6000 Hz. Mild left ear hearing loss was noted at 8000 Hz only. A thorough review of the claims file reveals no other VA outpatient treatment records addressing his claimed hearing loss. The Board notes that the Veteran's STRs are negative for hearing loss complaints, and there is no record of complaints or treatment for hearing loss between the May 1986 separation examination and the June 2014 VA examination, more than two decades. Thus, the Board concludes that bilateral hearing loss for VA purposes was not shown in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Board notes that service connection may still be granted on a direct basis. However, the Board finds that the preponderance of the evidence in this appeal is against finding that a medical nexus exists between bilateral hearing loss and an in-service injury, event, or disease. As noted above, the claims file includes a June 2014 VA audiology examination. The audiologist noted that an audiogram could not be completed that day. In the August 2014 VA hearing loss and tinnitus examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 20 LEFT 15 20 15 20 15 Maryland speech recognition testing revealed 100 percent in the right ear and 96 percent in the left ear. The audiologist noted normal hearing in both the right and left ear and diagnosed high frequency left ear sensorineural hearing loss (in the frequency range of 8000 Hz). The audiologist opined the Veteran's left ear, high frequency, hearing loss was not at least as likely as not (less than 50 percent probability) caused by or a result of an event in service. As a rationale for that opinion, the audiologist noted the Veteran reported he served on active duty from 1979 to 1986 and worked in administration. The Veteran reported he was exposed to ship noise in the Navy and a server room at the Pentagon. The Veteran's medical records were reviewed. Hearing results were documented within normal limits from 1981 to 1986. However, a shift in auditory threshold at 6000 Hz for the right ear was noted between 1982 and 1986. After a review of medical records and case history, it is the opinion of this audiologist that the Veteran's hearing loss is less likely as not a result of military service as hearing was within normal limits bilaterally in 1986. In addition, hearing was within normal limits for the right ear and only a mild hearing loss was noted for the left ear at 8000 Hz in August 2014. The Board also reviewed a March 2019 VA hearing loss and tinnitus examination and medical opinion. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 10 LEFT 10 15 10 15 15 Maryland speech recognition testing revealed 100 percent in the right ear and 96 percent in the left ear. The audiologist noted normal hearing in the right ear and diagnosed left ear sensorineural hearing loss only in the 8000 Hz frequency range. The audiologist opined the Veteran's left ear high frequency hearing loss was not at least as likely as not (less than 50 percent probability) caused by or a result of an event in service. As a rationale, the audiologist noted the Veteran's military specialty carried a low probability for hazardous noise exposure. He served on active duty from August 1979 to October 1986. Audiological records from July 1981 to his May 1986 separation examination showed normal auditory thresholds for the test frequencies 500-8k Hz for both ears. Hearing conservation program records document the issuance of hearing protection (e.g. medium inserts). During the Veteran's November 2020 Board hearing, the Veteran's representative reported that the Veteran has had slight hearing loss since separation. The Board notes that the Veteran is competent to observe lay symptoms, including trouble hearing. However, the Veteran has not been shown to have the training or credentials to provide a competent opinion as to a diagnosis of a hearing loss disability, defined as noted by regulation and by specific testing, or the onset date of such diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In contrast, the most recent VA audiologist reviewed the claims file and the Veteran's prior medical records and provided a medical opinion that relied not only upon the audiological findings in service but also acknowledged exposure to military noise. Consequently, the Board assigns substantially more probative value to the examination opinion. In a November 2020 Addendum Argument in Support of the Appeal for Service Connection for Bilateral Hearing Loss, the Veteran's agent asserted that the Veteran has a current diagnosis of bilateral sensorial hearing loss and experienced a hearing shift at separation. In addition, the agent argued that the Veteran has immutably and unequivocally reported symptoms of hearing loss since separation and the VA examination failed to acknowledge reports of these symptoms. The Board observes that the Veteran's reports of in-service noise exposure have been noted in full by VA examiners, and a new examination is not warranted. In summary, the Veteran currently has normal right and left ear hearing between the 500-4000 Hz frequency range and is only diagnosed with left ear high frequency (8000 Hz) hearing loss. The preponderance of the evidence is against the claim for service connection. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for bilateral hearing loss must be denied. See 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating accurately reflects the elements of disability present. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any doubt regarding the extent of the disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. 5. and 6. Entitlement to an initial disability rating higher than 10 percent for bilateral knee joint osteoarthritis. The Veteran asserts that his service-connected bilateral knee joint osteoarthritis is more severe than the currently assigned 10 percent rating. See May 2019 VA Form 9, Formal Appeal. Disabilities of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202; 38 C.F.R. § 4.40, 4.45, 4.59. 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 is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5000-5331). After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes the substantive criteria for DCs 5003, 5260, and 5261 remains the same. To maximize the Veteran's disability rating, the Board has considered the applicability of multiple DCs, under 38 C.F.R. § 4.71a, to rate his bilateral knee disabilities including DC 5256 (for ankylosis), DC 5258 (for dislocated semilunar cartilage), DC 5259 (for symptomatic removal of semilunar cartilage), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). A review of the claims file reveals no documented symptomatology; thus, the Board finds these DCs are not for application in this matter and will not be further discussed. The Veteran's knees are both currently rated as 10 percent disabling under DC 5003, which pertains to limited motion resulting from degenerative arthritis. 38 C.F.R. § 4.71a. Under DC 5003, arthritis is rated based on limitation of motion under the appropriate DCs for the specific joint or joints involved, in this case DC 5260 and DC 5261. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent applies for each such limitation of motion to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limited flexion of the knee is rated under DC 5260. A noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is warranted when limited to 45 degrees; a 20 percent rating is warranted when limited to 30 degrees; and a 30 percent rating is warranted when limited to 15 degrees. Id. Normal range of motion of the knee is from 0 to 140 degrees. Id., Plate II. While separate ratings may be assigned where a knee disability includes both limitation of flexion and limitation of extension, see VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004), the record does not establish a limitation of extension. Post-service treatment records include an October 2016 primary care record that noted left knee degenerative joint disease with the most recent orthopedic visit in May 2016, surgery not indicated. The same record noted that the Veteran is status post right knee surgery after a workers compensation claim. A separate October 2016 primary care record noted the Veteran uses a cane to walk. A February 2019 VA neurology consultation noted balance and gait issues. A March 2019 VA infectious disease clinic record noted pain bilateral knees rated as 7/10. The claims file includes a May 2018 VA knee and lower leg conditions examination wherein the examiner confirmed diagnoses of bilateral knee joint osteoarthritis, right knee from 2012 and left knee from 2015. No flare-ups were reported. Range of motion (ROM) results in the right knee included flexion from 0 to 110 degrees, and extension 110 degrees to 0, with pain was noted in both flexion and extension. ROM results in the left knee were noted as flexion from 0 to 110 degrees, and extension 110 degrees to 0, with pain noted in flexion and extension. There was no additional loss in ROM with repeated use over time in either knee. There was no ankylosis, or atrophy noted. The examination was negative for instability, recurrent effusion, left knee meniscal condition, or prior left knee surgical procedures. The examination does note a January 2015 right knee meniscal repair after a work injury. The report also notes that the Veteran constantly uses a cane to walk. Imaging studies were noted. Functional impact on employment was described as difficulty standing, walking, stooping, squatting, and prolonged driving. During the Veteran's April 2018 Board hearing, the Veteran asserted bilateral knee pain when the weather changes, that his knees occasionally give out on him and he carries three to four canes in his car to help walk, and his knees feel unstable. The Board notes that the Veteran is competent to observe his knee disability symptoms, including the presence of pain. However, the record does not show that he has the training or credentials to determine the current nature, extent, and severity of those symptoms to evaluate the proper disability rating concerning his bilateral knee disabilities. See Jandreau, supra. The evidence of record shows a limitation of flexion no worse than to 110 degrees for both the right and left knee even after repetitive use testing over time. Based on this evidence, the Board finds limitation of motion would be rated noncompensable for both knees. Thus, the 10 percent rating under DC 5003 is warranted and appropriate. Moreover, the Veteran's disability rating already contemplates the functional loss, or any other disability contemplated by DeLuca, supra, which would support a higher evaluation. The Board acknowledges that while the Veteran has consistently reported experiencing pain in both knees resulting in difficulty with prolonged ambulation, that symptomatology is already encompassed within the assigned ratings. Thus, the appeal, to this extent, is denied. 6. Entitlement to a separate rating of 10 percent, but no more, for slight instability of the bilateral knees is granted from August 22, 2019. The Board is aware that the Veteran has described bilateral knee instability and reported his knees have given out on occasion. See November 2020 hearing transcript. Again, the Veteran is competent to report symptoms such as the feeling of instability and his knees giving out, but he does not have the training or credentials to determine the proper disability evaluation concerning his bilateral knee symptoms, Jandreau, supra. However, objective medical evidence is not categorically more probative than lay evidence of instability. See English v. Wilke, 30 Vet. App. 347 (2018). The Board finds his reports are credible and consistent in the record throughout the period on appeal. As such, the evidence of bilateral knee instability is at least in equipoise, and a separate 10 percent rating, but no more, is warranted for slight instability for each knee under DC 5257 from August 22, 2009, the date the Veteran notified VA of his intent to file a claim. Under the old criteria, DC 5257 rated recurrent subluxation or lateral instability of the knee. A 10 percent rating was warranted for slight instability, a 20 percent rating was warranted or moderate instability, and the maximum 30 percent rating was warranted for severe instability. The criteria did not define what constituted slight, moderate, or severe recurrent subluxation or lateral instability. Under the amended criteria, DC 5257 also rates patellar instability. 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 warrants a 10 percent rating. 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 warrants a 20 percent rating. 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 walker warrants the maximum 30 percent rating. The Board finds under the old DC 5257 criteria, in defining slight, moderate, severe, in cases where Veterans attest to lateral instability, but objective testing does not reveal evidence of instability, such instability is no more than slight. That is the case here, as the Veteran testified to instability and his knees occasionally giving out during the November 2020 Board hearing, but tests done during the May 2018 VA knee and lower leg examination did not show evidence of instability. Turning to the amended DC 5257, the Board notes the Veteran's patellofemoral condition is not noted to have required a surgical repair. Thus, while there is a diagnosed condition involving the patellofemoral complex with recurrent instability, no more than a 10 percent rating is warranted. Therefore, the Board finds that the Veteran is entitled to a separate 10 percent rating for each knee, but no more, under either version of DC 5257. REASONS FOR REMAND The Veteran was afforded a May 2018 VA mental disorders (other than PTSD and Eating disorders) examination. The examiner indicated that the Veteran has been diagnosed with a mental disorder, but does not currently have a diagnosed mental health disorder. No symptoms were noted, although, the Veteran reported having occasional memories of seeing pictures of a supervisor who committed suicide during active service. The Veteran also testified at the November 2020 Board hearing that he was referred to a psychiatrist during his active service. The Board remands this matter for a new VA examination. Finally, as noted above, assertions made by the Veteran in his November 2020 Board hearing raise a claim for TDIU under Rice v. Shinseki, supra. The Board notes that the Veteran has not yet been provided with appropriate notice of the criteria for an award of TDIU. Such notice must be furnished to him on remand. The matters are REMANDED for the following action: 1. Furnish the Veteran a 38 C.F.R. § 3.159(b) notice letter addressing the Veteran's claim for entitlement to TDIU. The Veteran should be allowed a reasonable period in which to respond; any development suggested by his response must be accomplished. 2. Schedule the Veteran for a VA examination by a psychiatrist or psychologist to determine the etiology of any diagnosed acquired psychiatric disorders, other than PTSD. The claims file must be reviewed by the examiner and the most up-to-date Disability Benefits Questionnaire must be employed. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed acquired psychiatric disorders, is related to the Veteran's military service. If no psychiatric disorder is diagnosed, the examiner must address the Veteran's STRs including, June 1983 referral and psychiatric evaluation with a February 2019 VA treatment record noting the Veteran has depression. A complete rationale should be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.