Citation Nr: 21013989 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 09-20 610 DATE: March 11, 2021 ORDER Service connection for a low back disorder, other than scoliosis, is denied. Service connection for scoliosis is denied. Service connection for a tailbone disorder is denied. Entitlement to a rating higher than 10 percent for the service-connected left knee patellofemoral syndrome with degenerative joint disease (hereafter “left knee disability”) is denied. Entitlement to a rating higher than 10 percent for the service-connected right knee patellofemoral syndrome with degenerative joint disease (hereafter “right knee disability”) is denied. Entitlement to a separate 20 percent rating for the left knee meniscal tear, effective January 28, 2017, is granted. Entitlement to a separate 20 percent rating for the right knee meniscal tear, effective January 28, 2017, is granted. Entitlement to a rating higher than 10 percent for the service-connected right knee instability is denied. REMANDED Service connection for a bilateral hip disorder is remanded. Service connection for a traumatic brain injury (TBI) is remanded. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine arthritis was not chronic in service, symptoms were not continuous from service to diagnosis, and the disorder did not manifest to a compensable degree within one year of service separation. 2. The Veteran’s back disabilities did not begin in and are not otherwise related to service. 3. The Veteran’s scoliosis preexisted service and was not aggravated in service. 4. The Veteran does not have a current tailbone disorder. 5. The Veteran’s left knee disability has been manifested by, at worst, limitation of flexion to 110 degrees and normal extension. 6. The Veteran’s right knee disability has been manifested by, at worst, limitation of flexion to 100 degrees and normal extension, without instability or subluxation. 7. The Veteran has bilateral meniscal tears that cause frequent episodes of pain. 8. The Veteran’s right knee instability has been mild for the entire period on appeal, and the evidence does not show a ligament sprain, incomplete or complete tear, a repaired complete ligament tear, or that the Veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder other than scoliosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for scoliosis have not been met. 38 U.S.C. §§ 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 3. The criteria for service connection for a tailbone disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an initial rating higher than 10 percent for the service-connected left knee disability under Diagnostic Codes 5003-5260 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5260. 5. The criteria an initial rating higher than 10 percent for the service-connected right knee disability under Diagnostic Codes 5003-5260 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5260. 6. The criteria for a separate 20 percent rating for the left knee meniscal tear, effective January 28, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 7. The criteria for a separate 20 percent rating for the right knee meniscal tear, effective January 28, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 8. The criteria for an initial rating higher than 10 percent for the service-connected right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020) (as amended by 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (effective Feb. 7, 2021)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to June 1989. These issues come before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions. In August 2017, the Veteran testified at a Board hearing before Veterans Law Judge Wasik. The transcript is associated with the record. The Veteran testified at a second Board hearing in November 2020 before Veterans Law Judge Kane; the transcript is also associated with the record. Because there have been two hearings by two separate Veterans Law Judges on the issues on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the U.S. Court of Appeals for Veterans Claims interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. See id. During the November 2020 Board hearing, the presiding Veterans Law Judge notified the Veteran of his right to a hearing before the third judge. The Veteran, with his representative, waived that right. Thus, a hearing with the third Veterans Law Judge on this panel is unnecessary prior to rendering a decision on the merits. The Board remanded the present matter in December 2017 and again in January 2020. In January 2020, the Board remanded for updated treatment records and VA examinations and medical opinions. The Board finds that there was substantial compliance with the remand instructions except those instructions pertaining to the claims of service connection for a bilateral hip disorder, TBI, and acquired psychiatric disorder; accordingly, further remand is unnecessary for the remaining claims. After the November 2020 Board hearing, additional evidence was added to the Veteran’s claims file. However, none of this evidence is relevant to the issues decided herein, so no waiver is required. The examinations done in October 2020 concerned the feet and scars, and the VA outpatient records from June to September 2020 showed continued diagnoses of previously documented medical conditions, but with no additional treatment or findings pertinent to adjudicating the service connection and increased rating claims decided below. The RO granted the claim of service connection for a dental condition in a June 2020 rating decision. As this constitutes a full grant of the appeal, the claim is no longer before the Board. 1. Service connection for a low back disorder, other than scoliosis, is denied. The Veteran seeks service connection for a low back disorder other than scoliosis. He has been diagnosed with degenerative arthritis, intervertebral disc syndrome, and low back pain. Because arthritis is a “chronic disease,” the Board considered entitlement to presumptive service connection as well as direct service connection. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Board finds, however, that service connection is not warranted for any back disorder. First, the Board finds that presumptive service connection is not warranted for the Veteran’s arthritis. The Veteran’s service records, which appear to be complete, show multiple treatment visits for low back pain in service. In August 1975, the Veteran complained of low back pain. His mild scoliosis was noted, and he was diagnosed with chronic recurrent low back pain. He was treated again for low back pain in January 1976 “usually associated with prolonged marching or heavy lifting.” A physical evaluation and x-rays revealed no abnormality except slight scoliosis, and the impression was chronic mild low back sprain. In April 1977, he complained of back pain after carrying his pack. In March 1979, he was diagnosed with low back pain with muscle spasm, and it was noted that he had experienced back pain for four years. The Veteran was not treated again for back pain until February 1982, at which time he complained of experiencing low back pain only for the past seven to eight months. He was evaluated and diagnosed with recurrent low back pain. In the January 1983 report of medical examination, the Veteran reported low back pain after bend and reach exercises or sit-ups. The next treatment visit took place in December 1988, at which time he complained of lower back pain, frequent urination, and a fever. He was diagnosed with a muscle strain. The Veteran underwent a periodic report of medical examination in 1988 or 1989, which documents a normal spine evaluation. In short, the service records do not show that that the Veteran’s arthritis was chronic in service. Post-service private medical records do not show treatment for subsequent back pain until February 2002, when the Veteran was injured at work. A lumbar spine MRI revealed mild dehydration or desiccation of several lumbar discs and a small posterolateral L4-5 disc herniation producing extradural neural impingement on the left side. He underwent several surgeries but continued to experience low back pain. In July 2005, he established treatment at VA and reported that his back pain began in 2002 after an injury at work for which he received workman’s compensation. Notably, the Veteran’s records do not show arthritis until September 2008, after he underwent x-rays during a VA spine examination. Thus, the evidence does not show that his arthritis was chronic in service nor manifested to a compensable degree within one year of separation from service. Furthermore, the evidence does not show a continuity of symptomatology from service to diagnosis. The Veteran’s private, VA, and SSA medical records show that his back pain began in 2002. The Board acknowledges that the Veteran has since contended that he has experienced back pain since 1973, including during a September 2011 VA treatment visit. The Board finds that the Veteran’s contention is not credible, however, because it is contradicted by his numerous statements, made prior to seeking VA disability compensation, that his back symptoms began following the February 2002 work injury. Such statements include his July 2005 VA treatment record and records associated with his SSA disability claim, in which he reported that he stopped working after injuring his back at work in February 2002. When he established care with VA in 2005, the fact he dated onset of his back symptoms to 2002 weighs heavily against his allegations of continuity, since if he had, in fact, had back pain for more than a decade, it is reasonable to expect he would have reported such, rather than expressly reporting onset just a few years earlier with a work injury. It is presumed that an individual will report an accurate medical history when seeking care, so that his doctors are fully informed. Because the lumbar spine arthritis was not chronic in service, symptoms were not continuous from service to diagnosis, and the disorder did not manifest to a compensable degree within one year of service separation, presumptive service connection is not warranted. The Board further finds that the Veteran’s arthritis, intervertebral disc syndrome, and low back pain are not directly related to service. In making this determination, the Board relied on the evidence described above, including the Veteran’s service records, the extensive period between separation from service and symptom manifestation, treatment records documenting back complaints following a post-service work injury, and his statements relating his current symptoms to his work injury rather than reporting onset during service. Again, the Veteran’s records are replete with medical and lay documentation relating his low back pain to his February 2002 injury and post-injury surgeries. Additionally, the Board relied on the March 2020 addendum VA medical opinion. After a review of the claims file, the examiner concluded that the Veteran’s current lumbar disorders were not related to service. In support of this conclusion, the examiner noted that there was no evidence of a chronic lumbar musculoskeletal disorder until the post-service injury. Instead, the Veteran’s incidents of musculoskeletal pain in service were acute and associated with exercise or overuse, and the current disorders are related to the post-service work injury and surgeries. The Board finds that the medical opinion is probative because it was based on an accurate review of the claims file and included a rationale. Further, the Veteran’s service records support the examiner’s conclusion that the Veteran’s musculoskeletal pain was acute and exercise-related. The January 1976, April 1977, and January 1983 records show that his symptoms were caused by exercise, and the February 1982 and December 1988 records support her conclusion that the injuries were acute. In February 1982, the Veteran stated his pain began the year before, in 1981, and the Veteran’s subsequent treatment visit took place in December 1988, more than six years later, at which time he was only diagnosed with a muscle strain. Similarly, the last periodic report of medical examination showed a normal spine examination. The Board considered the Veteran’s contentions, including his Board testimony, that he experienced low back pain from service to his 2002 work injury. The Board finds, however, that these contentions are not credible or probative for the reasons stated above. Specifically, his contentions are contradicted by the numerous statements he made, prior to seeking VA disability compensation for his back, in which he related his low back pain to his post-service work injury and did not allege any back symptoms began during or were related to his military service. The Board thus finds that the weight of the competent and credible evidence shows the Veteran’s current back arthritis, intervertebral disc syndrome, and chronic low back pain are not related to service, and the claim is denied. 2. Service connection for scoliosis is denied. The Veteran seeks service connection for scoliosis of the spine. His service treatment records, which appear to be complete, are associated with the claims file. In January 1975, the Veteran underwent an entrance examination and scoliosis was noted on the examination report. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. See 38 U.S.C. § 1111. Where a disorder is noted at service entrance, 38 U.S.C. § 1153 applies and service connection is warranted only when the preexisting disorder was aggravated in service. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As scoliosis was noted at entrance, 38 U.S.C. § 1153 applies. In such a case, the burden falls on the Veteran to establish aggravation. See Wagner, 370 F.3d at 1096. The Board finds, however, that the evidence does not show that the Veteran’s scoliosis was aggravated in service. The Veteran’s service treatment records show multiple back pain complaints throughout service, including in August 1975, January 1976, April 1977, March 1979, February 1982, and December 1988. In August 1975, the Veteran complained of low back pain that he had experienced for 3 years. His mild scoliosis was noted, and he was diagnosed with chronic recurrent low back pain. He was treated again for low back pain in January 1976 “usually associated with prolonged marching or heavy lifting.” A physical evaluation and x-rays revealed no abnormality except slight scoliosis, and the impression was chronic mild low back sprain. In April 1977, he complained of back pain after carrying his pack. In March 1979, he was diagnosed with low back pain with muscle spasm, and it was noted that he had experienced back pain for four years. The Veteran was not treated again for back pain until February 1982, at which time he complained of experiencing low back pain for the past seven to eight months. He was evaluated and diagnosed with recurrent low back pain. In January 1983 report of medical examination, the Veteran reported low back pain after bend and reach exercises or sit-ups. The next treatment visit took place in December 1988, at which time the complained of lower back pain, frequent urination, and a fever. He was diagnosed with a muscle strain. VA obtained a medical opinion to assist in assessing whether the Veteran’s scoliosis was aggravated in service and, if so, was it a natural progression of the disease. In March 2020, after review of the claims file, the examiner concluded that there was no evidence of aggravation. Instead, citing to a medical article, the examiner noted that scoliosis is typically asymptomatic. She also discussed the Veteran’s history of musculoskeletal pain in service and concluded that it was acute and related to overuse and exercise rather than an aggravation of the Veteran’s scoliosis. She further noted that the Veteran’s current symptoms are associated with his 2002 work injury and subsequent surgeries and conditions, as discussed above. The Board finds that the medical opinion is probative because it was based on an accurate review of the claims file and included a rationale. Further, the Veteran’s service records support the examiner’s conclusion that the Veteran’s musculoskeletal pain was acute and exercise-related, rather than an aggravation of his scoliosis. The January 1976, April 1977, and January 1983 records show that his symptoms were caused by exercise, and the February 1982 and December 1988 records support her conclusion that the injuries were acute. In February 1982, the Veteran stated his pain began the year before, in 1981, and the Veteran’s subsequent treatment visit took place in December 1988, more than six years later, at which time he was only diagnosed with a muscle strain. Importantly, the Veteran underwent several x-rays during service, none of which documented a worsening in his scoliosis. Moreover, his post-service medical records do not show that there was aggravation in service; instead, there is no evidence of back complaints until the Veteran injured himself at work in February 2002. Notably, during a July 2005 VA annual evaluation, the Veteran complained that his “whole back/neck problem started with an injury at work in 2002.” In October 2005, a VA treatment record even noted that the Veteran’s spine was normal and there was no scoliosis. While scoliosis was later noted in a September 2011 VA treatment record, the post-service medical records do not support that his scoliosis permanently worsened in service. The Board considered the Veteran’s testimony before the Board, in which he contended he experienced no symptoms related to his scoliosis prior to service and his back constantly hurt after entering service. As a layperson, however, the Veteran is not competent to opine as to whether the back pain he experienced in service was acute musculoskeletal pain or related to his scoliosis. Instead, the Board finds that the wealth of evidence described above, including the service treatment records, statements made in service, and post-service medical records, is more probative as to that determination. The Board thus finds that the weight of the evidence does not show that his scoliosis was aggravated in service. Accordingly, service connection is not warranted for scoliosis and the claim is denied. 3. Service connection for a tailbone disorder is denied. The Veteran seeks service connection for a tailbone disorder. The Board finds, however, that there is no evidence of a current disability. The Veteran’s VA medical records from the period on appeal are associated with the claims file. Even though the records document extensive treatment for various musculoskeletal disorders, including degenerative arthritis in his spine and hips, there is no evidence of treatment or complaints of a tailbone disorder. In fact, the Veteran was afforded a VA spine examination in May 2018 and an x-ray of the sacrum and coccyx revealed no injury, fractures, or lesions. Notably, the Veteran stated he was not being treated for a tailbone condition during the November 2020 Board hearing. To the extent the Veteran alleges tailbone-related pain, it does not constitute a current disability because there is no evidence his tailbone pain has caused functional impairment which limited his earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Instead, his records are negative for tailbone-related complaints and show that his impairment is caused by his back disorders. The Board acknowledges that the Veteran’s representative argued the Veteran’s tailbone symptoms “impacted his past work attempts resulting in functional impairment in his earning capacity” during the November 2020 Board hearing. The Veteran has not worked since 2001, however, and the evidence does not show that the Veteran experienced tailbone symptoms that caused functional impairment which limited his earning capacity during the period on appeal. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the claim for service connection for a tailbone disorder is denied. 4. Entitlement to initial ratings higher than 10 percent for the service-connected left and right knee disabilities is denied. The Veteran seeks higher initial ratings for his service-connected left and right knee patellofemoral syndrome with degenerative joint disease. Currently, his bilateral knee disability is rated at 10 percent for each knee under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260. A higher rating is warranted where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, under Diagnostic Code 5003, or limited flexion to 30 degrees or less under Diagnostic Code 5260. See 38 C.F.R. § 4.71a. The Veteran has undergone four VA examinations during the appeal period to assist in assessing the severity of his left and right knee disabilities. During the May 2013 examination, the Veteran reported daily flare-ups that prevented him from ambulating normally. Range of motion testing revealed left and right knee flexion to 90 degrees with objective evidence of pain and extension to 0 degrees without objective evidence of pain. Repetitive use testing did not cause additional loss of motion. Muscle strength was normal and there was no evidence of a meniscus condition. The examiner noted the Veteran constantly used a knee brace for his right knee. He was afforded a second VA examination in February 2017. The Veteran reported pain, popping, instability, swelling, and flare-ups that caused increased pain and swelling. Range of motion testing revealed right knee flexion to 100 degrees, left knee flexion to 110 degrees, and bilateral extension to 0 degrees, all with objective evidence of pain. Repetitive use testing did not cause additional functional loss or loss of motion, and the examiner opined that repetitive use would limit right knee flexion to 100 degrees and left knee flexion to 110 degrees. The examiner was unable to opine on the loss of motion caused by a flare-up because he was “not a witness to a flare up.” Muscle strength was 4/5 bilaterally, but the examiner noted that this reduction was not entirely due to the claimed knees condition; instead, it was also related to the Veteran’s back surgeries and hip derangement. There was no evidence of ankylosis or a meniscus condition. The examiner noted that the Veteran constantly used a cane, brace, and walker due to his knees and hips. The Veteran was afforded a third VA examination in May 2018. He reported pain, popping, the right knee giving out, and flare-ups that occur two to three times per month and cause increased pain and swelling. Range of motion testing revealed right and left knee flexion to 120 degrees and bilateral extension to 0 degrees, all with objective evidence of pain. Repetitive use testing did not cause additional functional loss or loss of motion, and the examiner opined that she was unable to determine without resorting to mere speculation whether repeated use over a period of time or flare-ups would limit functional ability. Muscle strength was 5/5 bilaterally, and there was no evidence of ankylosis. Additionally, the examiner indicated the Veteran has a meniscus condition manifested by frequent episodes of joint pain and instability on the right side and a meniscal tear on the left side, documented by a February 2017 MRI. The examiner noted that the Veteran constantly used a cane for walking assistance. The Veteran was afforded the fourth examination in March 2020. He reported pain, burning, and throbbing, but denied flare-ups. Range of motion testing revealed right and left knee flexion to 120 degrees and bilateral extension to 0 degrees, all with objective evidence of pain. Repetitive use testing did not cause additional functional loss or loss of motion. The examiner opined that repeated use over a period of time and flare-ups, which the Veteran denied, would not significantly limit functional ability. Muscle strength was 4/5 bilaterally, and there was no evidence of ankylosis. Additionally, the examiner indicated the Veteran has meniscal tears in both knees, demonstrated by a January 2017 MRI, that cause frequent pain and impair his ability to bear weight. The examiner opined that the Veteran’s meniscal tears were likely a progression of the service-connected knee disabilities. The examiner noted that the Veteran constantly uses a cane and occasionally uses a walker for assistance. VA treatment records are associated with the claims file and document relevant treatment. In December 2016, the Veteran stated “yes” when asked whether his knees “pop, catch, grate, or give way.” Range of motion testing revealed right knee flexion to 130 degrees, left knee flexion to 117 degrees, and normal extension. In April 2017, he underwent an orthopedic surgery consultation, which did not reveal a ligamentous injury or instability on clinical examination. Range of motion testing showed flexion to 110 degrees and normal extension bilaterally, negative McMurray and Lachman tests, and no effusion. The VA provider noted “meniscus pathology but really not definitively related to symptoms.” Finally, the Board considered the Veteran’s Board testimony, in which he described the limitations caused by his bilateral knee impairment. After consideration of the lay and medical evidence, the Board finds that a higher rating is not warranted for the right or left knee under Diagnostic Codes 5003-5260. The evidence shows flexion to 100 degrees, at worst, for the right knee and 110 degrees, at worst, for the left knee, and normal extension bilaterally. The Board thus finds that the Veteran’s symptoms squarely fall within the initial 10 percent rating assigned by the RO and the claim is denied. In forming this conclusion, the Board considered the Veteran’s lay statements and principles outlined in 38 C.F.R. §§ 4.40 and 4.45 and based the ratings on the extent to which motion is limited by the factors outlined in those regulations. The Veteran has been able to perform repetitive use testing, with no additional loss of function or range of motion. As such, a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (holding that when evaluating musculoskeletal disabilities, 38 C.F.R. § 4.40 may be used to understand the nature of a veteran's disability, but not as a basis to assign a separate disability rating). The Board considered whether a separate rating was warranted under Diagnostic Code 5257 for left knee instability but finds that it is not, as discussed in the section below pertaining to a higher initial rating for the right knee instability. 5. Entitlement to separate 20 percent ratings for the left and right knee meniscal tears effective January 28, 2017 is granted. The Board finds that the evidence supports separate 20 percent ratings for left and right knee meniscal tears under Diagnostic Code 5258. Under Diagnostic Code 5258, semilunar cartilage that is dislocated with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent rating. 38 C.F.R. § 4.71a. The Court of Appeals for Veterans Claims (Court) has held that evaluation of a knee disability under DC 5260, as a matter of law, does not preclude separate evaluation of a meniscal disability of the same knee under DC 5258. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Here, in the March 2020 examination report, the examiner documented bilateral knee meniscal tears, diagnosed on January 28, 2017. The examiner concluded that the bilateral meniscal tears were a likely progression of the Veteran’s service-connected knee disabilities. Additionally, the Veteran’s examinations and treatment records document complaints of frequent episodes of pain and impaired ability to bear weight. Thus, a separate rating under Diagnostic Code 5258 is granted for both knees, effective January 28, 2017. 6. Entitlement to an initial rating higher than 10 percent for the service-connected right knee instability is denied. During the appeal period, the regulations governing the musculoskeletal system, including the criteria for rating knee instability, were revised. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (effective Feb. 7, 2021). When regulations are revised during an appeal, the Board is required to consider the claim under both the former and revised schedular criteria and to apply the more favorable regulation. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application (which it does not here). See VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will consider the claim under the former rating criteria for the entire appeal period, and the new criteria from the effective date of the revisions. The former and new criteria are explained below. Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). The Veteran’s disability is currently rated at 10 percent disabling under the former criteria. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The first section pertains to recurrent subluxation or instability and the second section pertains to patellar instability. Regarding recurrent subluxation and instability, a 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is assigned for an unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding 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 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 a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1) (as amended by 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). 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). Id. Note (2). The Veteran underwent four VA knee examinations during the period on appeal. During the first examination in May 2013, the Veteran did not report instability and joint stability tests were normal bilaterally. In February 2017, at the second examination, he complained of instability bilaterally. The examiner noted there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability tests revealed 1+ lateral instability in the right knee and normal stability in the left knee. The examiner noted that the Veteran does not have, nor had, recurrent patellar dislocation. Regarding assistive devices, it was noted the Veteran constantly used a brace, walker, and cane for his knees and hips. VA treatment records from the period on appeal are also associated with the claims file and show some treatment for instability. In a December 2016 treatment visit, the Veteran stated “yes” when asked whether his knees “pop, catch, grate, or give way.” Joint stability tests were positive for the MCL and ACL on the right side and negative for the left side, and the VA provider noted mild medial and anterior knee instability. In April 2017, he underwent an orthopedic surgery consultation, which did not reveal a ligamentous injury or instability on clinical examination. In May 2018, the Veteran underwent a third examination and reported giving out and instability in the right knee only. Joint stability testing was performed and revealed +1 lateral instability in the right knee and normal stability in the left knee. The examiner noted that the Veteran does not have, nor had, recurrent patellar dislocation. The examiner noted that the Veteran constantly used a cane for walking assistance. The Veteran was afforded the fourth examination in March 2020 and did not report symptoms related to instability. The examiner noted a history of slight lateral instability in the right knee and no history of recurrent effusion. Joint stability testing was performed and showed +1 anterior instability, medial instability, and lateral instability in the right knee. The left knee stability tests were normal. The examiner noted that the Veteran constantly uses a cane and occasionally uses a walker for assistance. After consideration of the evidence, including the Veteran’s hearing testimony, the Board finds that the weight of the evidence is against a higher rating under the former rating criteria. In December 2016, when instability was first documented, the VA provider noted that the Veteran’s instability was “mild,” and instability was not found in the April 2017 orthopedic surgery consultation. Importantly, the February 2017, May 2018, and March 2020 joint stability tests only showed +1 instability on the right, and the Veteran did not complain of instability in March 2020. While the Veteran testified that his right knee gives way and causes him to fall, his testimony does not show that his disability is more than mild. Thus, the evidence does not support the finding that the Veteran’s right knee instability warrants a higher rating under the former criteria. Furthermore, the Board finds that a higher rating is not warranted under the new criteria. Regarding recurrent subluxation or instability criteria, the evidence does not show a ligament sprain, incomplete or complete tear, or a repaired complete ligament tear. He has a meniscal tear, as discussed above, which is the cartilage of the knee, not a ligament. See https://www.merckmanuals.com/professional/injuries-poisoning/sprains-and-other-soft-tissue-injuries/knee-sprains-and-meniscal-injuries. Regarding the patellar instability criteria, the evidence does not show that the Veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Accordingly, higher ratings are not warranted under the new criteria. Finally, the Board considered whether a separate rating for left knee instability was warranted but finds that it is not. While the Veteran complained of bilateral knee instability during the February 2017 examination, left knee joint stability tests were normal. Importantly, the Veteran only complained of right knee instability in subsequent treatment visits and examinations and joint stability examinations continued to show normal results for the left knee. The Board considered the Veteran’s and his spouse’s testimony during the November 2020 Board hearing that his left knee gives way and causes him to fall, but finds that this testimony is not credible in light of the evidence discussed. The Veteran has undergone multiple VA treatment visits and examinations for his knees and, except in February 2017, has only reported right knee instability. Notably, in March 2020, the Veteran did not report any instability. Accordingly, the Board finds that a separate rating for left knee instability is not warranted. REASONS FOR REMAND 1. Service connection for a bilateral hip disorder is remanded. Unfortunately, the Board finds that the issue of service connection for a bilateral hip disorder must be remanded for an adequate medical opinion as the March 2020 medical opinion did not address the theory of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). 2. Service connection for a traumatic brain injury (TBI) is remanded. The Board finds that the issue of service connection for a TBI must also be remanded for an adequate medical opinion as the March 2020 medical opinion did not discuss whether there was a current TBI diagnosis, contain a rationale, nor address the Veteran’s lay statement as instructed by the Board in its January 2020 remand instructions. 3. Service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Finally, the Board finds that the issue of service connection for an acquired psychiatric disorder must be remanded for an adequate medical opinion as the March 2020 medical opinion did not address all the questions for the issue. The examiner noted the Veteran’s previous mental health diagnoses have resolved but did not opine whether they were caused by his service-connected disabilities. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that a claimant have a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even where the disability resolves prior to adjudication of the claim). The matters are REMANDED for the following action: 1. Forward the claims file to the March 2020 VA examiner, or another appropriate examiner if she is unavailable, for an addendum medical opinion regarding the Veteran’s bilateral hip disorder claim. An in-person examination is unnecessary unless determined otherwise by the examiner. After a review of the claims file, the examiner should respond to the following: Is it at least as likely as not that the Veteran’s bilateral hips disorder has been aggravated by one or more of the Veteran’s service-connected disabilities, to include his knee disabilities? “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. 2. Forward the claims file to the March 2020 VA examiner, or another appropriate examiner if he is unavailable, for an addendum medical opinion regarding the Veteran’s TBI claim. An in-person examination is unnecessary unless determined otherwise by the examiner. After a review of the claims file, the examiner should respond to the following: (a.) Does the Veteran have residuals of a TBI? (b.) If so, is it at least as likely as not that the Veteran’s residuals of TBI began in or are related to service? (c.) The examiner should address the March and April 1989 STRs (which noted a six-month period of disorientation, vertigo, and tinnitus) and the Veteran’s Board hearing testimony in which he described the ways in which he believes he experienced a TBI in-service. 3. Forward the claims file to the March 2020 VA examiner, or another appropriate examiner if she is unavailable, for an addendum medical opinion regarding the Veteran’s psychiatric disorder claim. An in-person examination is unnecessary unless determined otherwise by the examiner. After a review of the claims file, the examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s psychiatric disorder (depression and anxiety - as diagnosed in the July 2015 examination report) was caused by one or more of the Veteran’s service-connected disabilities, to include his knee disabilities? (b.) Is it at least as likely as not that the Veteran’s psychiatric disorder was aggravated by one or more of the Veteran’s service-connected disabilities, to include his knee disabilities? “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. The examiner must respond to these questions even if he/she finds that the Veteran’s acquired psychiatric disorders, as diagnosed in the July 2015 VA examination report, have since resolved. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, 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.