Citation Nr: 21071909 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-53 911 DATE: December 1, 2021 ORDER Service connection for a right ankle disability is granted. Service connection for a right ankle scar is granted. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder and major depressive disorder prior to September 25, 2019 is denied. Entitlement to a rating of 70 percent, but no greater, for generalized anxiety disorder and major depressive disorder as of September 25, 2019 is granted. Entitlement to a rating in excess of 10 percent for right knee meniscal tear, patellofemoral pain syndrome, and degenerative joint disease is denied. Entitlement to a separate 20 percent rating for instability due to right knee meniscal tear, patellofemoral pain syndrome, and degenerative joint disease is granted. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) effective July 3, 2019 is granted. FINDINGS OF FACT 1. The Veteran's right ankle disability is secondary to his service-connected left knee disability. 2. The Veteran's right ankle scar is due to a right ankle peroneal tendon repair in 2016. 3. Prior to September 25, 2019, the Veteran's generalized anxiety disorder and major depressive disorder manifested with symptoms causing cause occupational and social impairment with reduced reliability and productivity. 4. As of September 25, 2019, the Veteran's generalized anxiety disorder and major depressive disorder manifest with symptoms causing occupational and social impairment with deficiencies in most areas. 5. The Veteran's right knee meniscal tear, patellofemoral pain syndrome, and degenerative joint disease has resulted in limitation of flexion to no less than 100 degrees but has caused moderate instability requiring use of a brace. 6. The Veteran last worked full-time July 3, 2019 at which time his service-connected disabilities precluded his continued employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for a right ankle scar have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 3. The criteria for entitlement to a rating in excess of 50 percent for generalized anxiety disorder and major depressive disorder prior to September 25, 2019 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.4.130, Diagnostic Code 9400. 4. The criteria for entitlement to a rating of 70 percent, but no greater, for generalized anxiety disorder and major depressive disorder as of September 25, 2019 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.4.130, Diagnostic Code 9400. 5. The criteria for entitlement to a rating in excess of 10 percent for right knee meniscal tear, patellofemoral pain syndrome, and degenerative joint disease have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5260. 6. The criteria for entitlement to a separate 20 percent rating for instability due to right knee meniscal tear, patellofemoral pain syndrome, and degenerative joint disease have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 7. The criteria for entitlement to TDIU effective July 3, 2019 is granted. 38 U.S.C. § 1155, 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes to the Board of Veterans' Appeals (Board) from October 2017, January 2018, and November 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has other appeals pending under the modernized review system, also known as the Appeals Modernization Act (AMA). Those appeals will be adjudicated in a separate decision. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for a right ankle disability The Veteran contends that his right ankle disability is secondary to his service-connected left knee disability. The record reflects that in 2015, the Veteran was diagnosed with a cavovarus ankle deformity. He underwent a right peroneal tendon repair in 2016. In support of his claim, the Veteran submitted a February 2018 private doctor's opinion that his right ankle disability is mostly like a result of his gait and balance, which compensated for his injured left knee. The doctor opined that the compensation affected the Veteran's right leg, to include his right ankle. In August 2020, the Veteran submitted an opinion from another private medical provider. The medical provider opined that the Veteran's right ankle disability is secondary to his service-connected left knee injury. The given rationale is that the Veteran has had mobility issues related to pain and instability of the left knee and has thus overcompensated with the right leg for more than a decade, most likely leading to the eventual deterioration of the right ankle tendon. The medical provider stated that the Veteran's instability and pain in his right ankle is a compensatory reaction to maintain balance and redistribute weight equally. This causes a kinetic chain of inappropriate weight and pressure distribution throughout the lower extremities. There are also two VA opinions of record. In April 2017, a VA examiner opined that the Veteran's right ankle disability is not secondary to his service-connected left knee disability. The examiner stated that the Veteran has not had a long-standing severe antalgic gait according to medical records, which would have aggravated his right ankle symptoms. In October 2018, a VA examiner opined that the Veteran's right ankle disability is not secondary to either his left or right knee disabilities. The examiner explained that while the Veteran's gait is intermittently noted as antalgic, favoring left leg with excess weightbearing on right leg (increasing lateral stress on the right knee and right ankle) at times through the record, there is also documentation in the record of favoring the right leg at times and walking normally at times over the years. The examiner stated that without persistent antalgic gait shifting the weight-bearing laterally through the right knee for long periods, it cannot be established that right ankle cavovarus would develop. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current right ankle disability is proximately due to by his service-connected left knee disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for his right ankle disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right ankle scar The Veteran has a right ankle scar due to a peroneal tendon repair in 2016. As the Board has found that the Veteran's right ankle disability warrants service connection, the right ankle scar must also be service connected. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 3. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder and major depressive disorder The Veteran contends he is entitled to a higher rating for his service-connected generalized anxiety disorder and major depressive disorder. The Veteran currently has a 50 percent rating for his service-connected psychiatric disorder under Diagnostic Code 9400 effective April 21, 2017. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short 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 cause occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Id. The Board finds that giving the Veteran the benefit of the doubt, a staged 70 percent rating is warranted. The Veteran himself reported in treatment records that his mental health symptoms worsened during the period on appeal. Further, the private examiner who completed an assessment in April 2020 opined that the Veteran's symptoms presented as more severe than on previous examination in 2018. The record reflects that the Veteran stopped working in July 2019 due to undergoing left knee surgery. He returned to work briefly in November 2019 but reported he was unable to perform job duties due to his mental health symptoms. A November 2, 2019 VA treatment record notes the Veteran's report of significant mood swings, anxiety, uncontrollable crying spells, sleep disturbance, difficulty maintaining concentration, and becoming easily overwhelmed. The Board has carefully reviewed the record and finds the earliest evidence supporting the worsening symptomatology is a September 25, 2019 VA treatment record in which the Veteran reported worsening anxiety and nervousness. Thus, giving the Veteran the benefit of the doubt, the Board finds that a 70 percent rating is warranted as of September 25, 2019. Prior to September 25, 2019, the Board finds that the evidence supports that the nature and severity of the Veteran's service-connected psychiatric condition most closely approximated the criteria for a 50 percent rating, and therefore, a higher rating is not warranted prior to September 25, 2019. In a May 2018 letter, the Veteran's private treating psychologist stated that the Veteran has episodes of intense anxiety and blocking depression correlated with flare-ups of his physical disability. In October 2018, the Veteran underwent a VA examination. The examiner indicated that the Veteran has the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, low energy, lack of sexual interest, problems with concentration, appetite disturbance, word-finding difficulty, and increased irritability. The examiner found the Veteran to be oriented; to have appropriate dress and hygiene; his thought content to be logical, relevant, and goal-directed; not to have thought disturbance; his insight and judgment to be intact; his psychomotor function within normal limits; and to have an anxious/dysphoric mood with congruent affect. The examiner opined that the Veteran's condition results in occupational and social impairment with reduced reliability and productivity. The Board acknowledges that the Veteran's service-connected generalized anxiety disorder and major depressive disorder did cause the Veteran impairment, including both occupationally and socially, prior to September 25, 2019. However, the Board finds that the overall impairment most closely approximates occupational and social impairment with reduced reliability and productivity, the criteria for the 50 percent rating assigned. The Board notes that the Veteran was working prior to his July 2019 knee surgery. He further reported maintaining relationships with family during that time period. The Board specifically acknowledges his symptom of difficulty in adapting to stressful circumstances but finds that the frequency, nature, and severity is contemplated by the 50 percent rating assigned for that time period. As of September 25, 2019, the Board finds that a 70 percent rating, but not greater, is warranted. The record reflects an increase in the Veteran's symptomatology at that time. He returned to work briefly in November 2019 but indicated that he was unable to focus and concentrate to perform the job. Socially, he continued to report relationships with his family throughout the period on appeal. In December 2019, he underwent a mental status examination conducted in connected with his Social Security Administration (SSA) disability claim. The Veteran reported excessive anxiety and worry occurring for more days than for not at least the past six months associated with difficulty concentrating, sweating, irritability, feeling jittery, and racing heart. The examiner found no evidence of unusual perceptual experiences, judgment within normal limits, good insight, mild psychomotor agitation, mildly impaired recent memory but normal immediate and remote memory, normal concentration, mildly deficient persistence, and somewhat slow pace. The examiner stated that social functioning during the evaluation was mildly impaired. The Veteran was casually dressed with proper hygiene, somewhat pressured speech, oriented, anxious mood with congruent affect, circumstantial thought processes, and no thought content disturbances. The Veteran reported having no friends but indicated he has a good relationship with his spouse since 2001. In April 2020, he underwent a VA examination. He reported a good relationship with his mother and stated that he enjoys spending time with his children but rarely does anything with anybody else. He reported panic attacks every two to three days lasting between several minutes to several hours involving feeling jittery, increased anxiety, racing thoughts, tearfulness, chest pain, sweating, and shortness of breath. The examiner indicated that the Veteran has the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner noted the Veteran was well-groomed and found his speech normal in rate and tone, his thoughts goal-directed, oriented, and to have fair insight and judgment. In April 2020, a private psychologist completed a report on the Veteran. The examiner stated that the Veteran reported significant issues with anxiety and depression, including crying episodes when he was working and panic attacks three to six times per week. He reported trouble with concentration and significant fatigue. He reported excessive sleeping and nightmares. He reported anxiety around people and low motivation. He stated that when he was working he had difficulty concentrating and completing tasks. He reported a close relationship with his mother and a supportive relationship with his wife but indicated that mental and physical disabilities limit his ability to interact with his children. The examiner indicated that the Veteran was oriented with appropriate dress and hygiene; had logical, relevant, and goal-directed thought content; adequate insight and judgement; psychomotor function within normal limits; and was anxious with congruent affect. In July 2020 the Veteran underwent a private telehealth examination. The examiner opined that the Veteran's mental diagnosis causes total occupational and social impairment. The examiner indicated the Veteran has the following symptoms: depressed mood; anxiety; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short- and long-term memory; circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. The Veteran reported anxiety attacks four times a week lasting for about 30 minutes. He reported some anger problems but denied any destruction or violence. He reported feeling depressed on most days, including feelings of being overwhelmed, no energy, and sad. He reported impulsive thoughts about buying things. He reported he sometimes has lost time where he can't account for what he has done. He reported getting along well with his spouse of 19 years but stated he has no friends. On examination, the examiner found him to be oriented, to have fair concentration; a short attention span; increased psychomotor activity; coherent but hesitant, uncertain, and circumstantial speech; broadly intact memory though sometimes having difficulty with specifics. The examiner indicated that there was a slightly confused quality to the Veteran's thinking. At his August 2020 Board hearing, the Veteran testified that he has panic attacks at least four times a week and also has nightmares. He stated that he finds it hard to stay on task and sometimes forgets what he was asked and goes off topic. He reported that when he was working, he had difficulty staying focused and was so exhausted by the end of the day he would go home and go to bed. He reported crying episodes at work. The Board finds that overall, giving the Veteran the benefit of the doubt, the Veteran's symptoms caused a level of impairment most closely approximating a 70 percent rating as of September 25, 2019. The Board does not find that his condition caused total occupational and social impairment such that a 100 percent rating is warranted. The Board notes, for example only, that the Veteran has not demonstrated gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Board acknowledges that the July 2020 private examiner opined that the Veteran's condition causes total occupational and social impairment but finds that the evidence overall does not support that the severity of the Veteran's condition reached that level. The Board bases its opinion on all the evidence of record, including the Veteran's testimony before the undersigned in August 2020, medical treatment records, and both private and VA mental health examinations. The Board finds that the type, severity, frequency, and duration of the Veteran's symptoms most closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The Board specifically finds that a preponderance of the evidence is against finding that the Veteran has total social impairment. The Board notes that the Veteran has maintained family relationships and has generally been able to communicate within a medical examination or treatment relationship, as well as at his Board hearing. Although his service-connected generalized anxiety disorder and major depressive disorder causes significant impairments, the Board finds those impairments are not total with respect to occupational and social functioning. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. Thus, the Board finds that a 70 percent rating, but no greater, is warranted effective September 25, 2019. 4. Entitlement to a rating in excess of 10 percent for right knee meniscal tear, patellofemoral pain syndrome, and degenerative joint disease The Veteran contends that he is entitled to a higher rating for his service-connected right knee disability. He has a 10 percent rating for the entire period on appeal, with the rating assigned under Diagnostic Code 5260-5010 prior to February 11, 2020 and under Diagnostic Code 5010-5260 thereafter. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic Code 5010 applies to post-traumatic arthritis and instructs that the condition should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5260 applies to limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for limitation of motion due to the Veteran's right knee disability. On VA examination in April 2017, range of motion testing showed the Veteran to have flexion to 130 degrees and extension to 0 degrees with pain on flexion. After three repetitions he had flexion to 135 degrees with no change in extension. A May 2018 private orthopedic examination notes flexion to 100 degrees and extension to 0 degrees. A July 2019 private treatment examination notes range of motion in the right knee of 0 degrees extension to 118 degrees flexion. Range of motion testing in January 2020 showed flexion to 110 degrees and extension to 5 degrees with pain on both motions but not resulting in functional loss. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that with repeated use over time and during a flare-up the Veteran's flexion would be reduced to 100 degrees. On VA examination in February 2020, range of motion testing showed the Veteran to have flexion to 105 degrees and extension to 0 degrees with pain on flexion. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that with repeated use over time the Veteran's flexion would be limited to 100 degrees. The Veteran was noted not to have flare-ups. A VA November 2020 VA treatment record indicates that the Veteran had flexion to 120 degrees and extension to 0 degrees. There is no range of motion testing of record supporting that the Veteran has limitation of flexion to 30 degrees or less as required for a rating in excess of 10 percent under Diagnostic Code 5260. The Board acknowledges the Veteran's lay reports of symptoms, including painful motion. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation does not result in limitation of motion more nearly approximating flexion limited to 30 degrees, including with consideration of flare-ups and repeated use over time. The Board notes that a compensable rating for limitation of extension under Diagnostic Code 5261 requires extension be limited to 10 degrees or greater. The only range of motion testing indicating that the Veteran has had limitation of extension is the January 2020 VA examination, which indicated extension only limited to 5 degrees. Thus, the evidence does not support a compensable rating under Diagnostic Code 5261. The Veteran has argued that he should also be rated for right knee instability in addition to painful motion. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that Diagnostic Code 5257 was amended effective February 7, 2021, but as the Veteran's claim was on appeal prior to that date, the earlier criteria may be considered. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran's April 2017 VA examination report indicates that right knee stability testing was not performed. The report discusses left knee instability only. A May 2018 private orthopedic report states no varus or valgus instability in the right knee, although it later mentions instability and limping in the right knee. An August 2018 private record notes the Veteran wears bilateral knee braces for instability. An April 2019 private orthopedic treatment record notes that the Veteran wears a hinged brace on his right knee but that all ligaments appear stable. In January 2020, the Veteran reported on VA examination that his right knee gives out frequently. Stability testing was 1+ for anterior instability, posterior instability, medical instability, and lateral instability. Stability testing in February 2020 was normal. The examiner stated that the Veteran experiences buckling due to pain. He testified at his August 2020 Board hearing, the Veteran testified that his knee often gives out, sometimes when just walking. He estimated that his knee buckles at least every other day. He also stated that it also locks up when he sits too long. A November 2020 VA treatment record states that all right knee ligaments appear stable. The Board acknowledges the Veteran's lay statements throughout the period on appeal that his right knee gives way. The only objective medical testing showing instability is the January 2020 VA examination. However, the Board finds the Veteran's lay reports of right knee giving way to be competent and credible and supported by records noting his use of a knee brace throughout the period on appeal. The Board finds that the nature and severity of the Veteran's right knee giving way most closely approximates moderate recurrent subluxation or lateral instability. The Board has carefully considered the Veteran's reports. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms do not more nearly approximate severe severity. The Board also considered whether a higher rating was warranted under the revised criteria. In this regard a 30 percent rating is assigned 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. The record reflects use of a brace but does not reflect prescribed assistive devices and braces for the knee. While the records occasionally reflect use of a cane it appears to have been used for other conditions, such as the ankle. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's right knee instability. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board finds that the Veteran does not have any other symptomatology separate from painful motion and instability that is properly additionally rated under another Diagnostic Code. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for limitation of motion but finds that a separate, 20 percent rating, but no greater, is warranted for right knee instability. 5. Entitlement to TDIU An inferred claim for a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. In a January 2021 rating decision, the RO granted entitlement to TDIU effective January 14, 2020, the date the Veteran filed a supplemental claim. However, as an inferred claim for TDIU is part and parcel of the Veteran's claim for an increased rating for his service-connected psychiatric and right knee conditions on appeal, the Board will consider whether entitlement to TDIU is warranted prior to January 14, 2020. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran has a combined rating greater than 70 percent, including at least a 50 percent rating for PTSD, effective April 21, 2017. The Veteran has reported he last worked from November 12, 2019 to November 25, 2019 but was unable to perform job duties, even with accommodations from his supervisor, due to his service-connected disabilities. Prior to that date, he has reported he last worked full-time July 2, 2019. The Board finds that, giving the Veteran the benefit of the doubt, he met the criteria for entitlement for TDIU effective July 2, 2019. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.