Citation Nr: 21032345 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 07-21 254 DATE: May 26, 2021 ORDER The February 2016 Board decision that denied entitlement to service connection for left ear hearing loss is vacated. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to an initial rating in excess of 10 percent for right knee arthritis, manifested by limitation of motion, is denied. Entitlement to an initial rating in excess of 10 percent for right knee instability is denied. Entitlement to a separate 10 percent for the residuals of the right knee locking, pain, and effusion, status post meniscus tear/injury and arthroscopy (right knee disability), is granted throughout the appeal period. REMANDED Entitlement to higher ratings for generalized anxiety and panic disorder, currently evaluated as 10 percent disabling prior to February 13, 2015, 30 percent disabling from February 13, 2015, to October 13, 2018 (excluding a period of temporary total rating under 38 C.F.R. § 4.29), and 50 percent disabling thereafter, is remanded. Entitlement to higher initial ratings for right (dominant) shoulder impingement, status post Mumford repair with tender scar, currently evaluated as 10 percent disabling prior to February 13, 2015, and 20 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In February 2016, a single judge Board decision by Veterans Law Judge (VLJ) Jaeger denied service connection for left and right ear hearing loss; however, the Veteran provided testimony before VLJ Reynolds and VLJ Jaeger at the 2012 and 2015 hearings, respectively, concerning the issue of left ear hearing loss. 2. A panel decision with a third VLJ is necessary for final adjudication of the common claim service connection for left ear hearing loss, requiring vacatur of the February 2016 Board decision. 3. At no time during, or prior to, the pendency of the claim does the Veteran have a left ear hearing loss disability as defined by VA regulations. 4. Although there is evidence that right ear hearing loss preexisted the Veteran's second period of active duty service, the evidence fails to establish the condition was clearly and unmistakably not aggravated during active service. 5. The Veteran's right ear hearing loss is related to his second period of active duty service. 6. Resolving reasonable doubt in the Veteran's favor, his GERD began during active service. 7. The Veteran's service-connected right knee arthritis has not manifested in flexion limited to 30 degrees or extension limited to 15 degrees, or limitation of motion to a greater degree, at any time during the appeal period. 8. The Veteran's service-connected right knee instability, which is manifested by slight (Grade +1) laxity and occasional use of a brace, has not approximated moderate instability at any time during the appeal period. 9. The Veteran's right knee disability has been manifested by symptoms locking, pain, and effusion throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for vacatur of the February 2016 Board decision on the issue of entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 7014(a), 7102 (2012); 38 C.F.R. §§ 20.707, 20.904 (2020). 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3,309, 3.385 (2020). 3. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 4. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 5. The criteria for an initial disability rating in excess of 10 percent for right knee arthritis, manifested by limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2020). 6. The criteria for an initial rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 7. The criteria for a separate 10 percent rating for right knee locking, pain, and effusion, status post meniscus tear/injury and arthroscopy (right knee disability), have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1986 to February 1987 and from October 2000 to October 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in December 2005, February 2011, March 2012, November 2012, and May 2015 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of brief procedural history, which is also outlined extensively in the Board's previous February 2016 decision/remand, in May 2009 the Board denied a rating in excess of 10 percent for hypertension and dismissed his claims for higher initial ratings for his right knee and right shoulder disabilities as such had been withdrawn from appeal. However, the Veteran appealed such dismissals to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 Joint Motion for Remand (JMR) and Order, the Court vacated the Board's May 2009 decision as to the claims for an increased rating for right knee arthritis and right shoulder impingement syndrome and remanded the claims to the Board for further adjudication. In December 2010, the Board remanded the claims for higher initial ratings for right shoulder impingement, right knee arthritis, and right knee instability for further consideration by the Agency of Original Jurisdiction (AOJ). In the meantime, a February 2011 rating decision adjudicated the Veteran's December 2009 claims for increased ratings for his hypertension and generalized anxiety disorder. In this regard, such decision granted an increased rating of 10 percent for the Veteran's hypertension as of December 7, 2009, the date VA received his claim, but denied a rating in excess of 10 percent for his generalized anxiety disorder. Subsequently, the Veteran perfected an appeal as to the propriety of the ratings assigned for his hypertension and generalized anxiety disorder, as well as the effective date assigned for the 10 percent rating for hypertension. In a March 2012 rating decision, the AOJ denied service connection for bilateral hearing loss. The Veteran subsequently perfected an appeal as to such denial. In June 2012, the Veteran testified before an Acting VLJ (Reynolds) as to the claims for increased ratings for right shoulder impingement syndrome, right knee arthritis, generalized anxiety disorder, and hypertension as well as the claim for an earlier effective date for the increased rating for hypertension and entitlement to service connection for bilateral hearing loss. In November 2012 rating decision, the AOJ determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for GERD. The Veteran subsequently perfected an appeal as to such denial. In May 2015, the AOJ assigned a 30 percent rating for generalized anxiety disorder, as well as a 20 percent rating for right shoulder impingement, both effective Februarys 13, 2015. But see AB v. Brown, 6 Vet. App. 35, 38 (1993). Such rating decision also denied a claim of entitlement to a TDIU. In July 2015, the Veteran testified before another VLJ (Jaeger). A hearing transcript has been associated with the record. In February 2016, the Board issued a single judge (VLJ Jaeger) decision which denied service connection for left ear hearing loss; reopened and remanded the claim of entitlement to service connection for GERD; dismissed the claim for a higher rating for hypertension; granted an earlier effective date for the award of a 10 percent rating for hypertension; and remanded the issues pertaining to entitlement to a TDIU; entitlement to service connection for right ear hearing loss; and entitlement to higher ratings for the service-connected right knee disability, right shoulder disability, and psychiatric disorder. As explained below, a panel of three VLJs, including the two who presided over the 2012 (Reynolds) and 2015 (Jaeger) hearings, must decide the issues on appeal. Accordingly, this decision is being rendered by a panel of three VLJs. 38 U.S.C. §§ 7102(a), 7107(c). The Court has interpreted 38 C.F.R. § 20.707 as requiring that a Veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, the Veteran was afforded the opportunity for a hearing before the third member of the decision panel. The requested hearing was held in December 2020 before the undersigned VLJ (Kramer.) The transcript of the December 2020 hearing reflects that the Veteran agreed to consolidate the issues on appeal at the Board; and have a panel decision addressing all of the issues without the need for additional hearings for any of the issues on appeal. Vacatur 1. The February 2016 Board decision that denied entitlement to service connection for left ear hearing loss is vacated. VA regulations require that any Veterans Law Judge who conducts a hearing must participate in any decision made on that appeal. If more than one VLJ has conducted a hearing on an issue, the matter will be decided by a three-member panel. 38 U.S.C. § 7102; 38 C.F.R. § 20.707. As noted, the Veteran provided testimony before two different VLJs in June 2012 (VLJ Reynolds) and July 2015 (VLJ Jaeger) with respect to the issue of entitlement to service connection for left ear hearing loss. In February 2016, the Board issued a single judge (VLJ Jaeger) decision denying service connection for left ear hearing loss. Because the Veteran provided testimony before VLJ Reynolds and VLJ Jaeger at the 2012 and 2015 hearings, respectively, concerning the issue of left ear hearing loss, a panel decision (decided by both hearing VLJs, with a third VLJ), is necessary for final adjudication of the common claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). As this did not occur, due process requires that the February 2016 Board decision that denied entitlement to service connection for left ear hearing loss be vacated. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels 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. 2. Entitlement to service connection for left ear hearing loss is denied. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for left ear hearing loss as the first element of service connection, i.e., a current diagnosis of left ear hearing loss for VA purposes, has not been shown at any point prior to, or during, the pendency of the claim. In this regard, while the Veteran testified in July 2015 that his left ear hearing had further diminished, VA treatment records dated throughout the appeal period are negative for a diagnosis of left ear hearing loss as defined by VA. See, e.g., March 2018 VA Audiology Note (noting normal left ear hearing). Additionally, the May 2011 VA examination findings showed left ear speech discrimination of 98 percent, with a 15 Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz); a 10 dB loss at 1000 Hz; a 15 dB loss at 2000 Hz; a 5 dB loss at 3000 Hz; and a 10 dB loss a 4000 Hz. Therefore, based on the foregoing, the Board finds that the Veteran does not have a current left ear hearing loss under 38 C.F.R. § 3.385 as audiometric testing fails to reveal that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater or that the auditory threshold in at least three frequencies are 26 decibels or greater; or that the speech recognition score using the Maryland CNC Test are less than 94 percent. The Board does not discount the difficulties the Veteran has with his auditory acuity. However, in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Id.; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Board notes that the Veteran is competent to report a history of in-service noise exposure and current problems with decreased auditory acuity. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the presence of a hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis; rather, such a finding requires professionally administered test results satisfying the criteria set out at 38 C.F.R. § 3.385. In the absence of such evidence, service connection for left ear hearing loss must be denied. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for right ear hearing loss is granted. The Veteran contends that his right ear hearing loss is related to (or was aggravated by) exposure to acoustic trauma during active duty service. The Board notes that the Veteran's military occupational specialty was that of a motor transportation operator and thus exposure to acoustic trauma is conceded. Service treatment records from the Veteran's first period of active duty service (October 1986 to February 1987) are silent for complaints, treatment, and/or diagnoses of right ear hearing loss. During the Veteran's second period of active duty service (October 2000 to October 2005), a September 2000 Enlistment Report of Medical Examination reflected the following right ear audiometer findings: a 35 dB loss at the puretone threshold of 500 Hz; a 25 dB loss at 1000 Hz; a 15 dB loss at 2000 Hz; a 20 dB loss at 3000 Hz; and a 10 dB loss a 4000 Hz. A November 2002 Annual audiological evaluation reflected the following right ear audiometer findings: a 40 dB loss at the puretone threshold of 500 Hz; a 25 dB loss at 1000 Hz; a 20 dB loss at 2000 Hz; a 20 dB loss at 3000 Hz; and a 20 dB loss a 4000 Hz. The Board notes that these findings meet VA's definition of a hearing loss disability (right ear) pursuant to 38 C.F.R. § 3.385. A June 2005 separation audio examination revealed the following: a 35 dB loss at the puretone threshold of 500 Hz; a 30 dB loss at 1000 Hz; a 15 dB loss at 2000 Hz; a 15 dB loss at 3000 Hz; and a 15 dB loss a 4000 Hz. Following service, a May 2011 VA audiological examination reflected the following findings: a 45 dB loss at the puretone threshold of 500 Hz; a 45 dB loss at 1000 Hz; a 25 dB loss at 2000 Hz; a 25 dB loss at 3000 Hz; and a 20 dB loss a 4000 Hz. These findings meet VA's definition of a hearing loss disability (right ear) pursuant to 38 C.F.R. § 3.385. In this case, a question is raised as to whether right ear hearing loss preexisted the Veteran's second period of active duty service, from October 2000 to October 2005. At the Veteran's September 2000 enlistment examination, audiometric testing showed some degree of hearing loss in the right ear at 500 Hertz and 1000 Hertz. See Hensley, supra (noting that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). However, this level of diminished hearing in the right ear at enlistment does not meet the criteria for hearing loss disability as defined by VA under 38 C.F.R. § 3.385. Indeed, the Court held that if the degree of hearing loss noted on a Veteran's entrance examination failed to meet VA's definition of a "disability" for hearing loss under § 3.385, the Veteran was entitled to the presumption of soundness at entrance under 38 U.S.C. § 1111. McKinney v. McDonald, 28 Vet. App. 15, 28 (2016). Therefore, the presumption of soundness on entry to service attaches with respect to the Veteran's claim. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, when the presumption of soundness applies, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id. VA may show a lack of aggravation if clear and unmistakable evidence establishes that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the pre-existing condition. Id. If this burden is met, then the claimant is not entitled to service connection benefits. Id. On the other hand, if VA fails to show a lack of aggravation by clear and unmistakable evidence, then the presumption has not been rebutted. Id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness"). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). While there is evidence to suggest that right ear hearing loss preexisted the Veteran's second period of active duty service, the evidence fails to establish the condition was clearly and unmistakably not aggravated during such service. Specifically, audiometric testing conducted in November 2002 showed higher puretone thresholds in the right ear at 500 Hertz (namely, 40 decibels), 2000 Hertz, and 4000 Hertz when compared to September 2000 and November 2000 audiometric testing. Notably, the November 2002 findings demonstrate that the Veteran met VA's definition of a hearing loss disability in the right ear at that time. He continued to demonstrate at least some degree of right ear hearing loss at 500 Hertz and 1000 Hertz at separation, and, following service, the May 2011 VA audiometric testing continued to show higher puretone thresholds at 500 Hertz (45 decibels) and 1000 Hertz (45 decibels). The Board acknowledges September 2018 VA examiner opined that the Veteran's preexisting right ear hearing loss was not aggravated by service. However, the Board finds that the opinion is deficient or otherwise not adequate to establish by clear and unmistakable evidence that the right ear hearing loss was not aggravated during service. Indeed, the examiner largely ignored the fact that the Veteran's right ear hearing acuity increased in severity during service, so much so that it met the criteria for a hearing loss disability in November 2002. As such, the opinion is of little probative value. The burden of proof to show a lack of aggravation is on VA at this stage, and this burden must be met by "affirmative evidence" demonstrating that there was no aggravation. The Board finds that this burden is not met whereas here, the only opinion evidence on the matter is inadequate and overlooks significant probative evidence suggesting in-service aggravation. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Here, there is not clear and unmistakable evidence that a preexisting right ear hearing loss disability was not aggravated during service. Accordingly, the presumption of soundness is not rebutted, and the right ear hearing loss that manifested during the Veteran's second period of active duty service is deemed incurred in-service. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (noting that such a finding establishes the second element of service connection), aff'd 749 F.3d 1370 (Fed. Cir. 2014); Horn, 25 Vet. App. at 235 . Lastly, the evidence tends to make it at least equally likely that the Veteran's current right ear hearing loss diagnosis is related to service. In this regard, the Veteran was unequivocally exposed to in-service acoustic trauma and a right ear hearing loss disability was demonstrated during service with manifestations of the same following service. See, e.g., May 2011 VA Audiological Results. In light of the foregoing, the Board finds that the evidence is in a state of relative equipoise on all material elements of the claim. Accordingly, the right ear hearing loss service connection claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for GERD is granted. The Veteran contends that that his currently diagnosed GERD had its onset during active duty service. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. As an initial matter, VA and private treatment records dated throughout the appeal period confirm a GERD diagnosis. Service treatment records dated in June 2005 reflect an assessment of reflux esophagitis symptoms with heartburn that was treated with Aciphex. An assessment of GERD is noted in August 2005. On the Veteran's separation Report of Medical History, he checked "yes" as to having had or currently having frequent indigestion or heartburn. The Veteran has consistently reported that he has experienced continuous and ongoing GERD symptoms during, and since his separation from service in October 2005. See Board Hearing Transcripts, December 2020, p.10, and June 2015, pp. 8-9. He is competent to report on symptoms that are capable of lay observation, such as heartburn and burping (ultimately diagnosed as GERD during service), and the Board has no reason to doubt the credibility of his statements in this regard. Notably, the Veteran submitted his initial claim for service connection for GERD prior to this discharge from active service. Given the Veteran's STRs, his competent and credible complaints of experiencing heartburn/reflux-like symptoms during and since service, and his current diagnosis of GERD, the Board resolves all doubt in the Veteran's favor and finds that GERD had its onset in-service and has continued since service. The appeal is thus granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. 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."). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion 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. In specific regard to rating knee claims, under certain circumstances, such as when there is arthritis, a veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. Indeed, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as none of the symptomatology for one condition is "duplicative of or overlapping with the symptomatology" of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In VAOPGCPREC 9-98, General Counsel considered a hypothetical situation in which a knee disability was evaluated under DC 5259 that was productive of pain, tenderness, friction, and osteoarthritis established by x-rays. For the purposes of the hypothetical, it was assumed that the knee disability rated under DC 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel interpreted that, where a DC 5259 disability did not involve limitation of motion, a separate rating under DC 5003 in light of 38 C.F.R. §§ 4.40, 4.45, 4.59 may be warranted. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). As the Court has noted "§ 4.71a does not expressly prohibit separate evaluation under DC 5257 or 5261 and a meniscal DC." Lyles v. Shulkin, 29 Vet. App. 107, 114 (2017). The Court continued: The language and history of § 4.71a and the text of the surrounding provisions of the rating schedule unambiguously reflect that evaluation of a knee disability under DC 5257 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259. Nor does evaluation of a meniscal disability under DC 5258 or 5259 preclude, as a matter of law, separate evaluation of a different disability of the same knee under DC 5257 or 5261. Id. at 115. Thus, as is appropriate, the Board will discuss assigning the Veteran a separate rating for his left knee disability based on limitation of motion as arthritis is present. See VAOPGCPREC 09-04; VAOPGCPREC 23-97; VAOPGCPREC 9-98; Esteban, Lichtenfels, Id. Factual Background The Veteran seeks increased ratings for his service-connected and separately rated right knee disabilities. Initially, the Veteran was service-connected for right knee arthritis status post medial meniscal status post arthroscopy for plica meniscal injury, and awarded a 10 percent rating under DC 5299-5260 from October 30, 2005. The Veteran was also assigned a separate a 10 percent rating for right knee instability (as associated with the former disability) under DC 5299-5257, effective September 20, 2007. Turning to the evidence of record, STRs reflect that the Veteran had a torn posterior horn of the right medial meniscus as documented on a May 2004 MRI. He subsequently underwent surgery in September 2004 where in 40 percent of the medial meniscus was removed for bucket handle tear. See June 2005 Pre-discharge Examination. The Veteran reported that he was in constant pain, with occasional right knee swelling and use of a brace. On examination, he was able to flex the right knee from 0 to 120 degrees. There was no laxity. There was trace swelling above the knee joint. In August 2005 (while still on active duty), the Veteran underwent arthroscopy of the right knee. A prior history of locking, popping, catching, and pain with running/ambulating was noted. His physical examination was consistent with medial joint line tenderness, pain on McMurray, and some intermittent effusions. The Veteran underwent a VA Joints examination in September 2007. The VA examiner referenced a 2004 MRI and x-ray report which confirmed right knee joint effusion. Current symptoms included daily pain with flare-ups reaching a 9 out of 10 on the pain scale. The Veteran reported increased limitation of joint motion with flare-ups, avoidance of squatting/kneeling, right knee popping, occasional instability, and occasional feeling of patella pulling to the right. He used a brace on occasion when running. Right knee flexion (passive and active) was from 0 to 120 degrees (pain). There was no additional loss of range of motion due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use. Right knee (medial/lateral) had slight laxity with varus/valgus. All other stability tests were normal. McMurray's was positive with audible clicking. X-ray revealed mild medial joint compartment cartilaginous degeneration. The examiner opined that the DJD was due to the right knee surgeries. The Veteran underwent a VA Joints examination in May 2011. Right knee joint symptoms included instability, pain, stiffness, weakness, decreased speed of joint motion, and flare-ups (severe, every 2 to 3 weeks, lasting hours). He used a knee brace "once in a while," and there were no reported functional limitations on walking. Gait was normal. Extension of the right knee was normal (0 degrees), with no pain and no additional loss of range of motion with repetition. Passive range of motion was the same. Flexion was from 0 to 120 degrees, with pain beginning at 120 degrees and ending at 120 degrees. Passive range of motion was the same. There was no additional loss of range of motion with repetition. The Veteran underwent a VA Knee examination in April 2015. The Veteran denied flare-ups, but reported functional loss as "cannot squat or kneel for long periods of time" or run. Extension/flexion of the right knee was from 0 to 115 degrees, with no pain on examination. There was no pain evidence of pain with weight-bearing. He was able to perform repetitive use testing with no additional loss of range of motion. Right knee strength testing was 5/5. Joint stability testing was normal. Functional impact was described as unable to work required hours due to pain (works 23 hours weekly). The Veteran underwent a VA Knee examination in September 2019. He endorsed occasional right knee giving way. He stated that he takes opiates for his chronic pain and with them, his right knee pain is 4/10. He states that if he does not take them, he would be crying in pain. He has been on them since 2005. He denied flare-ups. Functional loss was described as follows: "He states if his knee gives way, he will stop to rest and then he resumes walking. He states he cannot walk 5 miles but has not measured how long he can walk- depends if his knee gives way or locks. It varies." Extension/flexion of the right knee was from 0 to 100 degrees with pain on extension/flexion causing a functional loss (described as difficulty squatting down or kneeling). There was evidence of pain with weight-bearing. There was crepitus. He was able to perform repetitive use testing with no additional loss of range of motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was 5/5. There was no ankylosis. There was medial right knee instability of +1 (0-5 millimeters). The examiner noted that the right knee meniscal tear resulted in frequent episodes of joint locking and occasional giving way/locking when walking. Residual symptoms of the arthroscopic repair in 2005 included pain and reduced range of motion. No assistive devices were used. Degenerative arthritis was confirmed by x-ray. Functional impact was described as follows: "He states if his knee gives way, he will stop to rest and then he resumes walking. He states he cannot walk 5 miles but has not measured how long he can walk- depends if his knee gives way or locks. It varies. He states he cannot stand for extended periods of time (for hours) due to his knee pain." VA treatment records dated from 2006 to 2019 document ongoing complaints of chronic right knee pain. 5. Entitlement to an initial rating in excess of 10 percent for right knee arthritis, manifested by loss of motion, is denied. The Veteran is in receipt of an initial 10 percent rating for arthritis, status post medial meniscal, status post arthroscopy for plica and meniscal injury, under DC 5299-5260. The assigned Diagnostic Code 5299-5260 suggests that the right knee disability is not explicitly listed in the Rating Schedule and is rated based on compensable limitation of flexion (DC 5260). 38 C.F.R. §§ 4.27, 4.71a. However, a review of the evidence reflects that the right knee disability has manifested as degenerative arthritis and been rated based on painful noncompensable limitation of motion, and that the right knee disability has not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period. Therefore, the diagnostic code assigned should have been DC 5003 to show that the service-connected right knee disability with degenerative arthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the diagnostic code to DC 5003 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. 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. When, however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent is applicable for each major joint affected by limitation of motion objectively confirmed by findings, such as swelling, muscle spasm, or satisfactory evidence of painful motion. A higher 20 percent rating is available for traumatic arthritis under DC 5010 with X-ray evidence of involvement of 2 or more major joints of 2 or more minor joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003, 5010. Of note, this is not shown in the present case. Under Diagnostic Code 5260, used in evaluating limitation of flexion of the leg, 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. Limitation of extension to 10 degrees warrants a 10 percent rating. A 20 percent rating requires that extension be limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. A 40 percent rating requires extension to be limited to 30 degrees. A 50 percent rating is awarded for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In this case, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for arthritis of the right knee. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to general pain, pain on movement, stiffness, weakness, decreased speed of joint motion, pain during flare-ups and with repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 15 degrees. The Board notes that while several VA examiners did not provide a specific degree to which range of motion of the knee would be limited with flare-ups or with repetitive use over time, the fact that the Veteran's right knee flexion and extension has, at most, been shown to be limited to 0 degrees of extension and 100 degrees of flexion, is found to demonstrate significantly greater retained functioning than a knee disability limiting motion to 30 degrees of flexion of 15 degrees of extension. Further, the 2019 VA examiner expressly found that weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Notably, throughout the entire initial appeal period the Veteran has demonstrated no additional loss of right knee motion with repetitive use testing and he denied flare-ups on VA examination in 2015 and 2019. 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 right knee arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to an initial rating in excess of 10 percent for right knee instability is denied. The Veteran is in receipt of an initial 10 percent rating for right knee instability under DC 5299-5257. Prior to February 7, 2021, 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. 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). As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a , Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with 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. A 20 percent rating is assigned with either (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 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. Regarding patellar instability, 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. 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 (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. 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). 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). Analysis Regarding the version of Diagnostic Code 5257 in effect prior to February 7, 2021, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee instability. The Board has carefully considered the Veteran's reports of right knee instability and right knee patella "pulling." English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity. In this regard, on VA examination in 2007, the Veteran reported only "occasional" right knee instability with "occasional" use of a knee brace when running. Objectively, the Veteran's lateral/medial laxity was described as "slight." On VA examination in 2011, the Veteran again reported that he only used a right knee brace "once in a while." On VA examination in 2015, joint stability testing of the right knee was normal, while on examination in 2019, medial instability was only Grade 1 (i.e., 0 to 5 millimeters of laxity). These findings simply do not rise to the level of "moderate" instability contemplated under DC 5257. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, the preponderance of the evidence is also against a rating in excess of 10 percent as there is no demonstration of persistent instability. Notably, diagnostic testing for stability at the April 2015 VA examination did not reveal any right knee instability whatsoever, which is strong evidence against a finding of persistent instability. A higher rating is also not warranted for patellar instability as the evidence does not show 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. Specifically, although the Veteran has reported the occasional use of a brace when running, there is no evidence of record to suggest that he has ever been prescribed an assistive device (such as a brace, cane, or walked) by a medical provider for instability of his right knee. See, e.g., April 2015 and September 2019 VA Knee Examinations (expressly noting that the Veteran does not use any assistive devices). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for right knee instability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 7. Entitlement to a separate 10 percent for right knee locking, pain, and effusion, status post meniscus tear/injury and arthroscopy, is granted. The Board finds that the evidence supports the grant of a separate 10 percent throughout the appeal period under 38 C.F.R. § 4.71a, DC 5259 (the only available rating under this DC) for symptoms unique to the meniscectomy not encompassed by the separate 10 percent ratings assigned above. Under DC 5259, a 10 percent rating is assignable for "Cartilage, semilunar, removal of, symptomatic." In rating the Veteran's knee disability, as described above, the RO chose to assign ratings under diagnostic codes related to range of motion and instability/subluxation rather than the diagnostic code for meniscal impairment, which was the primary injury in service and which was referenced for granting service connection. Throughout the period of appeal, the medical evidence recited above includes varying but recurrent symptoms of right knee joint pain, locking, giving way, popping, and occasional swelling and effusion due meniscal damage/tearing resulting from the right knee procedures. As discussed above, the service-connected right knee disability has resulted in arthritis in addition to the meniscal impairments, and multiple separate ratings are authorized under the regulatory scheme without violating pyramiding rules. See Lyles, Esteban, Lichtenfels, Supra. Affording the Veteran all reasonable doubt, the Board grants a separate rating of 10 percent under DC 5259 to account for any right knee symptoms experienced that are not adequately compensated for under DCs 5260 and 5257. Other Considerations The Board has also considered whether a separate or increased rating may be assigned under any other diagnostic codes, but finds that there is no medical evidence of ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum that would support a separate or increased evaluation under the criteria set forth in Diagnostic Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5262 (malunion or nonunion of the tibia and fibula), and 5263 (genu recurvatum). See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. Accordingly, the Board finds that higher initial ratings based on instability or arthritis with limited motion are not warranted. An additional separate rating of 10 percent for right knee cartilage-related symptoms under DC 5259 is warranted throughout the appeal period. REASONS FOR REMAND 1. Entitlement to higher ratings for generalized anxiety and panic disorder, currently evaluated as 10 percent disabling prior to February 13, 2015, 30 percent disabling from February 13, 2015, to October 13, 2018 (excluding a period of temporary total rating under 38 C.F.R. § 4.29), and 50 percent disabling thereafter, is remanded. VA outpatient treatment records indicate that the Veteran receives non-VA psychiatric care through the VA Veterans Choice Program at Baycare Behavioral Health (Dr. Tsai) in Clearwater, Florida. See, e.g., August 2019 VA Community Care Scheduling Note (noting that Veteran was approved for non-VA psychiatric treatment at Baycare Behavioral Health). Notably, the Veteran submitted a VA Form 21-4142 in March 2021, authorizing VA to obtain these records on his behalf. A March 24, 2021, notification letter from VA (specifically, from the VA Private Medical Records Retrieval Center) informed the Veteran copies of these records had been requested. This very recent and relevant development of the record remains pending and is pertinent to the issue on appeal; thus, a decision on the increased rating claim at this juncture would be premature. Moreover, although VA has apparently made one attempt to get the records, VA must make at least two attempts to obtain private medical records identified by a veteran unless it makes a finding that a second attempt would be futile. See 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159(c). Thus, if VA's first attempt to obtain these records is not fruitful, VA must make another attempt to obtain the private medical records identified by the Veteran. 2. Entitlement to higher initial ratings for right (dominant) shoulder impingement, status post Mumford repair with tender scar, currently evaluated as 10 percent disabling prior to February 13, 2015, and 20 percent disabling thereafter. The Veteran contends that his right shoulder disability has increased in severity since he was last examined by VA. See December 2020 Board Hearing Transcript, p. 22 (Veteran testifies that his right shoulder disability has worsened since over the last 6 months and since his 2019 VA examination). The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right shoulder disability. 3. Entitlement to a TDIU is remanded. As explained above, the Board has granted service connection for right ear hearing loss and GERD, and a separate rating for symptomatic removal of the right knee meniscus, and the claims for right shoulder and psychiatric disabilities remain pending completion of the below actions. As this action may result in a new combined total rating and alter the evidentiary basis for the TDIU claim, the Board will defer adjudication of this matter pending implementation of the Board's decision with respect to the above-referenced claims by the AOJ. The matters are REMANDED for the following action: 1. Make all reasonable attempts to obtain private psychiatric treatment records from Baycare Behavioral Health (Dr. Tsai) in Clearwater, FL. If after all reasonable efforts, the records are not obtained pursuant to VA's March 2021 request, make a formal finding that additional efforts for obtaining request such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder disability. 3. Take any additional action deemed necessary, and then readjudicate the remanded issues. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals A. JAEGER Veterans Law Judge Board of Veterans' Appeals T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.