Citation Nr: 21012784 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-35 127 DATE: March 5, 2021 ORDER Service connection for left ear hearing loss is denied. An initial disability rating in excess of 10 percent for left knee chondromalacia is denied. A separate initial disability rating of 10 percent, but no higher, for service-connected left knee instability from December 30, 2012, is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED An initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to June 16, 2014, is remanded. A disability rating in excess of 50 percent for PTSD from June 16, 2014, is remanded. An initial compensable disability rating for right knee chondromalacia prior to June 16, 2014, is remanded. A disability rating in excess of 10 percent for right knee chondromalacia from June 16, 2014, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a left ear hearing loss disability as defined by 38 C.F.R. § 3.385 at any time during or approximate to the pendency of the claim. 2. The Veteran’s service-connected left knee chondromalacia is manifested by painful limitation of flexion to at most 100 degrees and non-painful normal extension when considering additional motion lost after repetitive use and/or during flare-ups; and there is no evidence of ankylosis, tibia or fibula impairment, genu recurvatum, or a meniscal injury. 3. Since December 30, 2012, the effective date of the award of service connection, the Veteran’s left knee disability has been manifested by lateral instability and giving out, resulting in an overall disability picture that most closely approximates slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for an initial rating in excess of 10 percent for the service-connected left knee chondromalacia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes 5014, 5260. 3. Since December 30, 2012, the effective date of the grant of service connection, the criteria for a separate 10 percent disability rating, but no higher, for slight instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 2004 to December 2012. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for left ear hearing loss, granted service connection for right knee and left knee chondromalacia and assigned each knee disability an initial noncompensable disability rating, effective December 30, 2012, and granted service connection for adjustment disorder with anxiety and PTSD and assigned an initial 10 percent disability rating effective December 30, 2012. During the pendency of the appeal, the RO issued a rating decision in September 2014 granting an increased rating for the service-connected PTSD to 50 percent and an increased rating for the service-connected right knee disability to 10 percent, both effective from June 16, 2014. On the Veteran’s VA Form 9, he indicated that he believed the VA decided his case incorrectly with regard to the issues of service connection, earlier effective date, and evaluation of disability for his right and left knee, PTSD, and left ear hearing loss claims. See October 2014 VA Form 9. The VA issued a letter in March 2015 which appears to consider the Veteran’s October 2014 as an attempted NOD for the issues of earlier effective date for his service-connected bilateral knee disabilities and PTSD and indicates that the VA cannot accept it as such as it is not timely with respect to the April 2013 RO rating decision. The Veteran submitted a formal NOD in March 2015 where he indicates that he is disputing the effective date of the claim and stating that the effective date should go back to December 29, 2012. However, the Board notes that this date is the day the Veteran separated from active service and that December 30, 2012 is already the effective date for the increased ratings claims on appeal. See DD 214; see also April 2013 rating decision. Thus, what the Veteran appears to be disagreeing with are the ratings assigned for his service-connected right knee disability and PTSD prior to June 16, 2014. Notably, the RO issued an SOC in August 2015 which lists the issues as: entitlement to an earlier effective date than June 16, 2014, for the increased evaluation of 50 percent for post-traumatic stress disorder and entitlement to an earlier effective date than June 16, 2014, for the increased evaluation of 10 percent for right knee chondromalacia. These issues are already on appeal as increased ratings claims for an initial rating in excess of 10 percent for service-connected PTSD prior to June 16, 2014 and for an initial compensable rating for right knee chondromalacia prior to June 16, 2014. An informal Decision Review Officer (DRO) hearing was held later in August 2015 wherein the DRO explained to the Veteran why the VA assigned the effective date of June 16, 2014 for the increased ratings and informed the Veteran that he would have to provide medical evidence prior to June 16, 2014 showing his disabilities had increased in severity to be granted an earlier effective date. This evidence further indicates that the earlier effective date issues being discussed and adjudicated are not properly characterized as earlier effective date claims but as the increased rating claims for PTSD and right knee chondromalacia that are already on appeal. In response to the August 2015 SOC, the Veteran submitted a VA Form 9, substantive appeal later in August 2015 in which he reiterated that the original date of claim is December 2012. See August 2015 VA Form 9. In July 2016, the Veteran’s representative provided a statement indicating that the Veteran is requesting to withdraw his current pending appeal for an earlier effective date for PTSD. Approximately a week later, the VA received a lay statement from the Veteran wherein he states that it is his intention and preference to drop his current pending appeal with respect to the effective date of his current rating but did not specify which rating(s) he was referencing. The RO informed the Veteran that they were discontinuing his appeals for an earlier effective date for his service-connected right knee chondromalacia and service-connected PTSD. See July 2016 and August 2016 correspondence. The Veteran filed a new claim in June 2019 for the issues of, in pertinent part, service connection for hearing loss and increased ratings for his service-connected left and right knee disabilities and his service-connected PTSD. The Veteran was informed that the VA is already processing a pending appeal for PTSD, left knee, right knee and left ear hearing loss which was received in June 2013. See September 2019 correspondence. In May 2020 the Board remanded the case to the RO for further development and adjudicative action. Specifically, the Board remanded the case for the RO to review additional evidence which has been associated with the claims file since the RO last adjudicated the issues in the August 2015 SOC and to prepare a supplemental statement of the case (SSOC). In an August 2020 Deferred Rating memorandum, the RO explained the procedural history of the current appeal but appears to have mistaken the Veteran’s withdrawal of his right knee and PTSD earlier effective date claims (which as explained above, were not actually earlier effective date claims and were already on appeal as increased rating claims) as a withdrawal of the right knee and PTSD increased rating claims. Viewed in the light most favorable to the Veteran, the Board assumes that the Veteran withdrew the earlier effective date issues because the issues of increased rating for his right knee and PTSD prior to June 16, 2014 were already in appellate status. Thus, the withdrawal of these claims cannot be considered an implicit withdrawal of the increased rating claims. In August 2020, the RO issued an SSOC which only addressed the issues of service connection for left ear hearing loss and an increased rating for the Veteran’s left knee disability. Thus, the RO did not issue an SSOC to consider additional evidence as to the issues of entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to June 16, 2014, and in excess of 50 percent thereafter and an initial compensable disability rating for right knee chondromalacia prior to June 16, 2014, and in excess of 10 percent thereafter. As such, those issues will be remanded. 1. Entitlement to service connection for left ear hearing loss. The Veteran seeks service connection for a left ear hearing loss disability that he believes is related to in-service noise exposure. The question for the Board is whether the Veteran has a current left ear hearing disability that is related to service. The Board concludes that the Veteran does not have a current left ear hearing loss disability that is related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, such chronic diseases, such as organic diseases of the nervous system, which include sensorineural hearing loss are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). During service, the Veteran served as a rifleman and reports participating in combat. His DD214 lists his MOS as rifleman and confirms that the Veteran received Combat Action Ribbons for both Afghanistan and Iraq. Therefore, his reports of exposure to loud noise while on active duty are credible. Nevertheless, audiometric testing during service was negative for hearing loss. In this regard, the Veteran received an audiometric test immediately prior to his December 2012 separation. See December 2012 VA examination. The puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 15 LEFT 10 5 5 15 15 Speech discrimination testing scores were 100 percent bilaterally. Review of the Veteran’s post-service treatment records provides no evidence that the Veteran has had a bilateral hearing loss disability as defined by VA regulations after separation from service. In June 2014, the Veteran received another VA examination for his claimed left ear hearing loss disability. Audiometric testing during the examination revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 25 LEFT 15 10 15 25 30 Speech discrimination testing scores were 100 percent for the right ear and 96 percent for the left ear. Audiometric testing conducted during the July 2019 VA examination revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 15 25 LEFT 10 5 10 15 20 Speech discrimination testing scores were 96 percent for the right ear and 100 percent for the left ear. There is no indication that the audiometric testing from the December 2012, June 2014, or July 2019 VA examinations is inaccurate, and there is no audiometric evidence to the contrary. Accordingly, they are afforded significant probative value as to the non-existence of a current hearing loss disability for VA purposes under the regulation. Moreover, the Veteran has not contended, and the evidence does not show, that his hearing acuity has worsened since the July 2019 VA examination to a degree that would meet the criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385. The evidence supporting the existence of a left ear hearing loss disability consists of the lay statements from the Veteran. Specifically, the Veteran contends that he has hearing loss due to active service. Although lay testimony is competent as to observable symptoms and some medical matters, the criteria for establishing a current hearing loss disability are specifically enumerated in 38 C.F.R. § 3.385 which requires minimum audiometric and speech recognition scores to meet those criteria. Cf. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s statements, therefore, cannot establish a current hearing loss disability for purposes of VA compensation benefits. Notably, while the Veteran has some degree of hearing loss as evidenced by the above audiograms showing puretone thresholds above 20 decibels in some frequencies and had high frequency hearing loss in the 6000 Hz and 8000 Hz range upon entry into service, his hearing loss does not reach a level of severity that is considered a hearing loss disability, for purposes of establishing service connection under 38 C.F.R. § 3.385. As explained above, a current hearing loss disability for VA purposes is defined in 38 C.F.R. § 3.385, and the Veteran’s audiometric findings do not meet that criteria because (i) the Veteran’s speech discrimination scores using the CNC word list are not less than 94 percent in the left ear ear; and, (ii) because the Veteran does not have at least one puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz that is 40 decibels (dB) or greater; and/or (iii) because the Veteran does not have puretone auditory thresholds of 26 decibels or higher in at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz. Based on the foregoing, the Veteran does not have a current left ear hearing loss disability for VA purposes and therefore service connection for hearing loss must be denied. As the preponderance of the evidence is against an essential element of the claim, the benefit of the doubt doctrine is inapplicable. See Gilbert, 1 Vet. App. at 49; see also Ortiz, 274 F.3d at 1364. Accordingly, service connection for a left ear hearing loss disability is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107 (b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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.”). A finding of functional loss due to pain, however, 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). 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 intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual 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. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 2. An initial disability rating in excess of 10 percent for left knee chondromalacia. 3. A separate initial disability rating of 20 percent, but no higher, for service-connected left knee instability. The Veteran asserts that his service-connected left knee disability is more disabling than reflected by the currently assigned disability rating. The Veteran’s left knee chondromalacia is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5014-5260, applicable to limitation of flexion of the leg and osteomalacia. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. In this regard, "Chondromalacia" is not listed in the disability ratings schedule. Chondromalacia is a "softening of the articular cartilage, most frequently in the patella." Dorland's Illustrated Medical Dictionary 1930 (32nd ed. 2012). The Veteran’s left knee disability was rated under Diagnostic Code 5014, analogous to osteomalacia. Diagnostic Code 5014 provides that osteomalacia is rated based on limitation of motion of the affected parts as degenerative arthritis, which is evaluated under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension. Diagnostic Code 5260 provides the criteria for limitation of knee flexion of the knee. Under this diagnostic code provision, a 30 percent disability rating is assigned where flexion is limited to 15 degrees; a 20 percent disability rating is assigned where flexion is limited to 30 degrees; a 10 percent disability rating is assigned where flexion is limited to 45 degrees; and a noncompensable disability rating is assigned where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. In addition, Diagnostic Code 5261 governs limitation of extension and provides for a noncompensable disability rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for a limitation to 15 degrees, 30 percent for a limitation to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for a limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved; in this case Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. If a compensable degree of limitation of motion is not attainable under the relevant rating criteria, then Diagnostic Code 5003 provides for a 10 percent rating for each such major joint or group of minor joints affected by limitation of motion. In that event, the limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA’s General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003-5010 (for the arthritis) and Diagnostic Code 5257 (for the instability) based on additional disability. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 (flexion) or Diagnostic Code 5261 (extension). Hence, if a claimant has a disability rating under Diagnostic Code 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under Diagnostic Code 5003-5010. Likewise, if a claimant has a disability rating under Diagnostic Code 5003 for arthritis of the knee, and there is evidence of instability, a separate rating is available under Diagnostic Code 5257. See VAOPGCPREC 9-98 (August 14, 1998) (clarifying that, to receive separate ratings on this basis, the Veteran must at least have sufficient limitation of motion to meet the threshold minimum requirements for a zero percent rating under either Diagnostic Code 5260 or 5261, for flexion or extension respectively, or have pain causing additional limitation of motion to at least these extents). It is also possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). During a pre-discharge VA examination in December 2012, the Veteran reported left knee pain and popping which has worsened over time with running and prolonged standing. He further reported that the left knee gives out unexpectedly. The Veteran reported flare-ups which make it difficult for him to run and perform other high-impact activities because his left knee buckles. He was diagnosed with left knee patellofemoral pain syndrome. A physical examination revealed normal flexion and extension with objective evidence of painful motion on flexion but no objective evidence of painful motion on extension. The examiner noted that the Veteran had crepitus and grinding with range of motion testing. The Veteran was able to perform repetitive use testing with 3 repetitions and post-test flexion and extension of the left knee was normal. The examiner reported that the Veteran had functional loss and/or functional impairment of the left knee and lower leg after repetitive use in the form of pain on movement. Muscle strength testing and joint stability testing were normal. The examiner found no evidence or history of recurrent patellar subluxation/dislocation and no evidence of a meniscal condition or surgical procedure for a meniscal condition. The Veteran reported occasionally using wrapping on his left knee during flare-ups. Diagnostic testing of the knees was normal and showed no evidence of joint effusion, degenerative arthritis or abnormalities. The functional impact of the Veteran’s left knee disability was reported as affecting his ability to perform frequent kneeling, squatting, and climbing stairs repetitively. An October 2013 VA physical medicine rehab note indicates that the Veteran was diagnosed with bilateral knee chondromalacia. The Veteran was afforded another examination in June 2014. He reported knee pain that has worsened since service. He reported flare-ups which he described as painful motion of his knees. The examiner estimated that the Veteran’s left knee flexion is limited by an additional 10 degrees during flare-ups. A physical examination revealed flexion to 115 degrees, with pain at 110 degrees, and normal extension with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with 3 repetitions, but post-test flexion of the left knee was limited to 110 degrees. Post-test extension was normal. The examiner reported that the Veteran had functional loss and/or functional impairment of the left knee and lower leg after repetitive use including less movement than normal, pain on movement, and disturbance of locomotion. The Veteran had pain on palpation affecting both knees. Muscle strength testing and joint stability testing were normal. The examiner found no evidence or history of recurrent patellar subluxation/dislocation and no evidence of a meniscal condition or surgical procedure for a meniscal condition. The Veteran reported that he regularly uses a brace for his bilateral knee pain. Radiographic imaging was performed which revealed normal knees and showed no evidence of joint effusion, degenerative arthritis or abnormalities. The functional impact of the Veteran’s left knee disability was reported as affecting his ability to stand for a prolonged period, climb stairs and climb over machines. A September 2014 VA treatment note indicates that the Veteran reported bilateral knee pain. He reported having x-rays taken in November 2012 and being told that his knee cartilage was worn away. He reported that he has only rarely fallen and the examiner noted that there was no instability during examination of the knees. The examiner noted that September 2013 x-rays were normal and the Veteran was sent to physical therapy for evaluation and treatment for possible patellofemoral syndrome. Physical therapy was completed in December 2013 with some improvement noted. The examiner stated that the Veteran had no effusion or instability on examination. The examiner also noted that the Veteran has been taking medication and using knee sleeves and a brace. The Veteran reported popping, grinding and achy pain. A magnetic resonance imaging scan (MRI) of the Veteran’s left knee was taken in March 2016 which revealed mucoid signal change within the ACL on the right side, degeneration signal changes within portions of the medial and lateral menisci but not a clear tear, mild Hoffitis component and minimal medial head of the gastrocnemius tendinosis. X-rays taken in March 2016 of the bilateral knees were normal. The Veteran underwent another VA examination in August 2019. The Veteran was diagnosed with left knee chondromalacia. The Veteran reported that his bilateral knee chondromalacia has worsened since the June 2014 VA examination. He reported an increase in pain and decreased mobility but reported that he has not had knee surgery. The Veteran reported daily bilateral deep aching knee pain that he rates 10/10 in severity. He reported sharp pain with prolonged walking or standing. The Veteran stated that his knee disabilities are aggravated by going up and down stairs and that relieved by non-weight bearing rest. He reported crepitus and occasional slight swelling. The Veteran stated that he could walk a mile but experiences pain afterwards. The Veteran denied flare-ups. Regarding functional loss or impairment of the knees, the Veteran stated that he cannot walk or stand for long periods of time and is limited in physical activity to that extent. Physical examination revealed normal flexion and extension in the left knee with no pain noted on exam and no evidence of pain with weight bearing. There was objective evidence of crepitus but no objective evidence of localized tenderness or pain on palpation in the left knee. There was no additional functional limitation of the left knee following repetitive use. The examiner noted that the Veteran was not examined immediately after repetitive use over time but stated that pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time. The examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner stated that they could not describe any functional loss with repeated use over time in terms of range of motion and explained that “[f]ollowing further review of the Veteran's records and giving consideration to their subjective complaints and objective exam findings, given my clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional losses of function or motion.” The examiner noted that the Veteran denied experiencing flare-ups. The examiner found no additional factors contributing to the Veteran’s left knee disability. Muscle strength testing was within normal limits. There was no atrophy. There was no ankylosis. Joint stability testing was normal. The examiner stated that the Veteran does not currently and has never had shin splints or a meniscal condition. The examiner found that the Veteran did not use any assistive devices for locomotion. The Veteran reported losing less than a week of work time in the past 12 months as a result of his knee disabilities. The examiner found that prolonged standing, walking or other weight bearing activities for more than several hours a day would result in pain requiring rest and impact his work performance. There was no objective evidence of pain on passive range of motion testing of the left knee and no objective evidence of pain on non-weight-bearing testing of the left knee. The examiner stated that the Veteran appeared to be easy-going and minimizing his symptoms. Having carefully considered the Veteran’s claim, the preponderance of the evidence shows that during the entire time period on appeal the Veteran’s left knee disability was manifested by pain, tenderness, disturbance of locomotion and slight instability. As indicated above, the Veteran’s left knee is rated as 10 percent disabling under Diagnostic Code 5260 since the effective date of the grant of service connection. In order to meet the criteria for the next higher 20 percent disability rating under Diagnostic Code 5260, there would have to at least be an indication of flexion limited to 30 degrees. This is clearly not the case as flexion in the Veteran’s left knee has consistently been shown to be more than 100 degrees. Even considering the absolute maximum limitation of flexion reported by the Veteran, including during flare-ups and after repeated use over time, the Veteran does not meet the criteria for a 20 percent disability rating under 5260 which requires that flexion be limited to 30 degrees or less. The Veteran has also not demonstrated painful motion on extension or extension limited to 10 degrees and therefore does not meet the criteria for a separate compensable disability rating under Diagnostic Code 5261 for limitation of extension. Consideration has been given to assigning a higher disability rating based on functional loss due to pain, weakness, fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements. The Veteran's reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 10 percent for the service-connected left knee disability under Diagnostic Codes 5260 or a separate compensable disability rating under Diagnostic Code 5261 at any time during the appeal period under 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell. In reviewing the symptoms and other evidence of record, there is insufficient showing of functional loss supported pathology and objective observation to warrant an increased disability rating for flexion or a separate compensable disability rating for extension. The Board has considered the Veteran’s left knee disability under other potentially applicable diagnostic code provisions. The evidence does not show that the Veteran experienced ankylosis of the left knee joint, as he was able to demonstrate movement in the left knee. In addition, there is no evidence that the left knee was manifested by or genu recurvatum. The Board considered other diagnostic codes pertaining to the knee. Separate 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 evidence does not support, nor has the Veteran contended, left knee ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion; symptomatic removal of semilunar cartilage, an impairment of the tibia or fibula or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application in this case. Additionally, the Board has considered whether a separate disability rating is warranted for left knee instability under Diagnostic Code 5257. Prior to February 7, 2021, Diagnostic Code 5257 provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee that is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas v. Derwinski, 1 Vet. App. 308 (1991), the Federal Circuit held that the more favorable regulations should apply to the Veteran. However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran’s disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Regarding the changes to the Rating Schedule criteria which were made effective February 7, 2021, the Board has considered these changes and finds that the new criteria regarding evaluations of knee disabilities are not as advantageous to the Veteran in this case. Specifically, the significant changes related to knee disabilities were to add Diagnostic Code 5002 for active arthritic process, which the Veteran does not have; change the total replacement and resurfacing criteria under Diagnostic Code 5055, again, which the Veteran does not have in this case; and, finally, to add the requirement of assistive devices to the criteria for Diagnostic Code 5257, which is not present in the pre-February 7, 2021 rating criteria. Prior to February 7, 2021, Diagnostic Code 5257 evaluated recurrent subluxation or lateral instability of the knee. It provided a 10 percent disability rating for slight recurrent subluxation or lateral instability. A 20 percent disability rating was warranted for moderate recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability warranted a 30 percent disability rating. The United States Court of Appeals for Veterans Claims recently held that nothing in Diagnostic Code 5257, under the pre-amendment rating criteria, provided that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347, 349 (2018).  As of February 7, 2021, under the amended criteria, Diagnostic Code 5257 evaluates knee, other impairment of, which may be rated under separate criteria for recurrent subluxation or instability or, alternatively, patellar instability. Under the amended criteria for rating recurrent subluxation or instability, a 10 percent disability rating is warranted for a 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 disability rating is warranted for either: (a) 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) an 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. 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 warrants a maximum 30 percent disability rating. Under the amended criteria for rating 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 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 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. Diagnostic Code 5257, Note (1), as amended, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) instructs 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 surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Resolving reasonable doubt in the Veteran’s favor, the Board will award a separate 10 percent initial disability rating for slight left knee instability from December 30, 2012, the date following the Veteran’s separation from active service, under the pre-February 7, 2021 rating criteria for DC 5257. In this regard, there is competent lay evidence of left knee instability. During the December 2012 VA examination, symptoms of left knee giving way and buckling were reported. Additionally, the Veteran was noted to have “rarely fallen” due to his knee disabilities in September 2014. See September 2014 VA treatment note. The June 2014 VA examination report indicates that the Veteran regularly used a brace for his knee disabilities. Accordingly, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a separate 10 percent initial disability rating for slight left knee instability are met from December 30, 2012, the date following the Veteran’s separation from active service, under the pre-February 7, 2021 rating criteria for DC 5257. The Board finds that the weight of the evidence is against an initial disability rating in excess of 10 percent for left knee instability under the pre-February 7, 2021 rating criteria for DC 5257. In this regard, there is no evidence of moderate recurrent subluxation or lateral instability of the left knee at any point during the period on appeal. Notably, no examination of record has revealed objective evidence of lateral instability or subluxation. Joint stability testing is normal throughout the appeal period. Therefore, a disability rating in excess of 10 percent for the service-connected instability of the left knee is not warranted under the old, pre-February 7, 2021 rating criteria for DC 5257. The Board also finds that the weight of the evidence is against a separate rating in excess of 10 percent for the left knee under the criteria for DC 5257 from February 7, 2021. There is no evidence that the Veteran’s chondromalacia, a diagnosed condition of the patellofemoral complex, has resulted in a history of surgical repair of the patellofemoral complex resulting in recurrent instability. As noted, joint stability testing during the May 2019 VA examination was normal. Finally, as previously discussed, there is no evidence of subluxation, or a sprain, incomplete ligament tear, or complete ligament tear resulting in persistent instability that requires a medically-prescribed (italics added for emphasis) assistive device. Accordingly, a disability rating in excess of 10 percent for left knee instability is not warranted under the criteria for Diagnostic Code 5257 from February 7, 2021. REASONS FOR REMAND 1. An initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to June 16, 2014, is remanded. 2. A disability rating in excess of 50 percent for PTSD from June 16, 2014, is remanded. 4. An initial compensable disability rating for right knee chondromalacia prior to June 16, 2014, is remanded. 5. A disability rating in excess of 10 percent for right knee chondromalacia from June 16, 2014, is remanded. As discussed in more detail in the Introduction, the RO failed to issue an SSOC which addresses the issues of entitlement to an initial disability rating in excess of 10 percent for PTSD prior to June 16, 2014, and in excess of 50 percent thereafter and an initial compensable disability rating for right knee chondromalacia prior to June 16, 2014, and in excess of 10 percent thereafter because it mistook the Veteran’s attempted withdrawal of his earlier effective date appeal as an implicit withdrawal of his increased ratings claims. Thus, these matters must be returned to the RO for proper adjudication. (Continued on the next page)   The matters are REMANDED for the following actions: Issue a new supplemental statement of the case adjudicating the issues of entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to June 16, 2014, and in excess of 50 percent thereafter and an initial compensable disability rating for right knee chondromalacia prior to June 16, 2014, and in excess of 10 percent thereafter, to include consideration of all evidence received since the September 2014 statement of the case. Carole R. Kammel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.