Citation Nr: 22015776 Decision Date: 03/19/22 Archive Date: 03/19/22 DOCKET NO. 16-16 515 DATE: March 19, 2022 ORDER An initial disability rating in excess of 10 percent for the service-connected right knee patellofemoral syndrome manifested as noncompensable painful motion is denied. An initial disability rating in excess of 10 percent for the service-connected left knee patellofemoral syndrome manifested as noncompensable painful motion is denied. A separate disability rating of 10 percent, but no higher, for right knee dislocation of semilunar cartilage from November 15, 2017 is granted. A separate disability rating of 10 percent, but no higher, for left knee dislocation of semilunar cartilage for from November 15, 2017 is granted. A separate disability rating of 10 percent, but no higher, for right knee instability from November 2, 2017 is granted. A separate disability rating of 10 percent, but no higher, for left knee instability from November 2, 2017 is granted. An initial compensable disability rating for post-operative right ear with tympanic membrane patch is denied. An initial compensable disability rating for the left ear hearing loss disability prior to January 26, 2017 is denied. Since January 27, 2017, entitlement to service connection for right ear hearing loss is granted. Since January 27, 2017, a compensable disability rating for bilateral hearing loss disability is denied. FINDINGS OF FACT 1. The evidence shows that the Veteran's right knee patellofemoral syndrome was manifested by painful, but noncompensable, motion of the right leg, with flexion of the right knee not limited to 30 degrees or less or extension limited to 15 degrees, to included consideration of additional functional loss following repeated use over time and during flare-ups. 2. The evidence shows that the Veteran's left knee patellofemoral syndrome was manifested by painful, but noncompensable, motion of the left leg, with flexion of the left knee not limited to 30 degrees or less or extension limited to 15 degrees, to included consideration of additional functional loss following repeated use over time and during flare-ups. 3. From November 15, 2017, the evidence shows that the Veteran has had a meniscal tear in the semilunar cartilage in the right and left knees. He has not been found to have pain, effusion, or locking caused by his meniscal tear. 4. From November 2, 2017, the evidence shows that the Veteran has experienced symptoms approximating mild recurrent subluxation or lateral instability of the right knee. 5. From November 2, 2017, the evidence shows that the Veteran has experienced symptoms approximating mild recurrent subluxation or lateral instability of the left knee. 6. The Veteran's service-connected post-operative right ear with tympanic membrane patch is already in receipt of the highest rating available under 38 C.F.R. § 4.87, Diagnostic Code 6299-6211; however, from January 26, 2017, the Veteran has had a right ear hearing loss disability associated with the service-connected post-operative right ear with tympanic membrane patch. 7. Prior to January 26, 2017, the Veteran's service-connected left ear hearing loss disability was manifested by a numerical hearing impairment of Level I. 8. From January 26, 2017, the Veteran's service-connected bilateral hearing loss disability has been manifested by, at most, a numerical hearing impairment of Level I in the right ear and Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for the service-connected right knee patellofemoral syndrome manifested as noncompensable painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5260. 2. The criteria for an initial disability rating in excess of 10 percent for the service-connected left knee patellofemoral syndrome manifested as noncompensable painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5260. 3. The criteria for a separate 10 percent disability rating for right knee dislocation of semilunar cartilage, asymptomatic, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5258. 4. The criteria for a separate 10 percent disability rating for left knee dislocation of semilunar cartilage, asymptomatic, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5258. 5. The criteria for a separate 10 percent disability rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5257. 6. The criteria for a separate 10 percent disability rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, Diagnostic Code 5257. 7. The criteria for an initial compensable disability rating for the service-connected post-operative right ear with tympanic membrane patch have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.87, Diagnostic Code 6299-6211. 8. Prior to January 26, 2017, the criteria for an initial compensable disability rating for the service-connected left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. 9. From January 26, 2017, the criteria for an initial compensable disability rating for the service-connected bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to September 2002. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted service connection for right knee patellofemoral syndrome and assigned an initial noncompensable disability rating; service connection for left knee patellofemoral syndrome and assigned an initial noncompensable disability rating; service connection for a left ear hearing loss disability and assigned an initial noncompensable disability rating; and service connection for post-operative right ear with tympanic membrane patch and assigned an initial compensable disability rating (all effective September 9, 2002). In November 2002, VA received the Veteran's Notice of Disagreement (NOD). In March 2016, the RO discovered that the November 2002 NOD had not been addressed. Thereafter, also in March 2016, the RO issued a Statement of the Case (SOC). In April 2016, VA received the Veteran's VA Form 9 appeal to the Board. In October 2019, the Board remanded the case for further development and adjudicative action. In a July 2020 rating decision, the RO increased the disability ratings for the right and left knee patellofemoral syndrome from noncompensable to 10 percent for each knee, effective September 9, 2002. At the outset, there is no automatic waiver for evidence obtained by VA. See 38 U.S.C. § 7105(e). If such evidence, which is pertinent to the claim(s) on appeal, is received after a veteran's claim has been transferred to the Board for appellate review, a veteran can waive consideration of the evidence by the AOJ and permit the Board to consider the evidence in the first instance. If a veteran fails to waive AOJ consideration or specifically declines to waive such consideration, then remand is necessary for the AOJ to consider the evidence in the first instance. 38 C.F.R. §§ 19.37(b); 20.1305(c). In this case, the RO issued a Supplemental Statement of the Case (SSOC) in August 2020 and subsequently certified the case to the Board in October 2020. Following receipt of the case by the Board, in April and May 2021, the RO completed new VA examinations for knees, hearing loss, and ear conditions. In February 2022, the Board notified the Veteran that the April and May 2021 examinations had been associated with the claims file and asked the Veteran whether he wished to waive consideration of this evidence by the RO or, alternatively, have these additional records considered by the RO in the first instance. In a February 2022 correspondence, the Veteran, through his representative, indicated waiver of initial RO consideration of the April and May 2021 VA examinations. Given that the Veteran has specifically waived initial consideration of this evidence by the RO, the Board may consider the evidence in the first instance and, as such, proceed with a decision in the present appeal. 38 C.F.R. §§ 19.37(b); 20.1305(c). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Right and Left Knee Disabilities When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The service-connected right and left knee patellofemoral syndrome are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260. The current 10 percent ratings assigned for the right and left knee are based on subjective or objective evidence of painful motion of both knees, without evidence of compensable limitation of motion. See 38 C.F.R. § 4.59. Diagnostic Code 5260 rates limitation of leg flexion and Diagnostic Code 5261 rates limitation of leg extension. Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating. A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent rating. Finally, extension limited to 45 degrees warrants a 50 percent rating. A veteran who has both compensable limitation of flexion and compensable limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. See VAOPGCPREC 9-04 (September 17, 2004). During the period on appeal, the Veteran received a general VA medical examination in July 2002. Regarding the right knee, the Veteran reported recurrent pain "particularly in the area of his right kneecap." The pain was worse after strenuous activity and during rainstorms and wet weather. Flare-ups of the right knee occurred once per month and lasted one to two days. Regarding the left knee, the Veteran reported recurrent "throbbing" and "aching pains." Flare-ups occurred when he "carries a heavy pack" and lasted one to two days. Regarding right knee ROM, flexion and extension were normal (flexion to 140 degrees and extension to 0 degrees). Regarding left knee ROM, flexion and extension were also normal. There was no pain on right or left knee ROM. However, there was "popping" on extension in both knees, "particularly on the right side." Drawer and McMurray tests were negative for right or left knee instability. The Veteran described "fatigue and weakness in his knees after exertion" but "the major functional impact is due to pain, particularly in the left knee." There was no evidence of ankylosis, and x-rays of both knees were normal. Finally, functional impacts included "difficulty with any bending or stooping required or heavy lifting" involving his job as a vehicle operator and mechanic. However, the July 2002 examination report does not include Correia findings or state whether there would be additional functional loss following repeated use over time and during flare-ups. An August 2017 VA primary care clinic note indicates that the Veteran's knees "freeze up" when sitting, but walking helped to loosen up the knees. Moreover, the Veteran reported that his knees crack and pop when he bends and that he has increased difficulty getting up from a squatting position. ROM testing of the right knee revealed flexion limited to 122 degrees and extension was to -4 degrees. Flexion of the left knee was limited to 123 degrees and extension was to -4 degrees. Muscle strength of 4/5 was noted bilaterally in the quadriceps and hips. See VA primary care note dated August 7, 2017. A November 2017 VA physical therapy note indicates that the Veteran had felt the sensation of his knees "giving out on him." VA physical therapy note dated November 2, 2017. A November 2017 VA orthopedic surgery consult note indicates that the Veteran reported anterior knee pain with popping and clicking, but no locking or diving way. Knee pain was related to activity. Examination of the knees revealed mild bilateral patellofemoral tenderness. However, the knees were "stable," with negative McMurray instability tests for both knees. MRIs of both knees showed "horizontal stable tear of medial meniscus." VA orthopedic surgery consult dated November 15, 2017. The Veteran did not receive another VA examination until May 2018. At the time of examination, the Veteran reported "more of a decrease in activity than others his age due to the increase of pain in the bilateral knees." Additionally, the examiner noted that x-rays now revealed diagnosis of bilateral knee degenerative arthritis as well as "effusions in the knees ... from continued use of the joints that irritate the patellofemoral syndrome." Current symptoms included "stiffness after sitting," knee pain while working on concrete surfaces, and feeling that the right knee will give out on him. Flare-ups were precipitated by "working on concrete for a couple of hours," were "7/10" in severity, lasted "5-10" minutes, and were relieved by sitting a resting for a few minutes." Regarding ROM, flexion of the right and left knees was to 140 degrees and extension was to 0 degrees, or normal flexion and extension in both knees. However, there was pain on flexion of both knees. There was no additional functional loss after 3 repetitions. The examiner did not provide estimates of additional functional loss following repeated use over time and during flare-ups because of inability to make "such a determination without directly observing function under these conditions." There were no contributing factors of disability. Muscle strength on flexion and extension was normal in both knees, with no evidence of atrophy. There was no evidence of ankylosis. Joint stability testing provided no objective evidence of right or left knee instability. The examiner noted a diagnosis of bilateral shin splints, characterized by "pain when standing"; however, the shin splints did not affect ROM of the knee or ankle. The examiner indicated that the Veteran did not have a meniscal condition in either knee. The examiner noted regular use of knee braces for "stability" and "comfort." Finally, functional impacts included "1-2 weeks work time lost in last 12 months" and "[u]nable to stand, sit[,] bend or crouch for long periods of time." Regarding Correia, there was objective evidence of pain on passive ROM and objective evidence of pain on weight-bearing and nonweight-bearing. The Veteran most recently received a VA examination for his knees in April 2021. During the examination, the Veteran reported stiffness after sitting for long periods, but denied limitations with walking, standing, or running. He reported daily-occurring flare-ups of the right and left knees of "knee stiffness and discomfort with prolonged sitting." The flare-ups were mild to moderate in severity, lasted for under an hour, and were alleviated by walking. Regarding ROM, flexion and extension for the right and left knees were normal with no evidence of pain on motion. There was no additional functional loss after 3 repetitions in either knee, and the examiner opined that there would be no additional functional loss following repeated use over time. Similarly, the examiner concluded that there would be no additional functional loss during flare-ups. There were no contributing factors of disability. There was no objective evidence of recurrent subluxation or persistent instability or of a ligament tear in either knee. There was no evidence of ankylosis. The examiner indicated that the Veteran did not have a meniscal condition in either knee. The Veteran used knee braces "as needed." The examiner indicated that the right and left knee disabilities did not affect the Veteran's ability to work. Finally, regarding Correia, there was no evidence of pain on passive ROM, which was the same as active ROM. There was no pain on weight-bearing or nonweight-bearing, but there was evidence of pain on rest/non-movement not resulting in functional loss. Here, initial disability ratings in excess of 10 percent for the right and left knee patellofemoral syndrome based on limitation of motion are not warranted. Specifically, at no time during the period on appeal has right or left knee flexion been limited to 30 degrees or less, nor has right or left knee extension been limited to 15 degrees. At most, flexion of the right knee has been limited to 122 degrees and flexion of the left knee to 123 degrees, with slight hyperextension of both knees (to -4 degrees), to include consideration of additional functional loss following repeated use over time. See VA primary care note dated August 7, 2017. Notably, the July 2002 examination failed to provide Correia findings or state whether there would be additional functional loss following repeated use over time and during flare-ups. Furthermore, the May 2018 examiner provided inadequate grounds for inability to provide an opinion regarding additional functional loss over time following repeated use over time and during flare-ups because the only grounds provided for this assessment was inability to observe the Veteran under those conditions. See Sharp, 29 Vet. App. at 34. Therefore, the July 2002 and May 2018 examinations are inadequate with regard to Correia and Sharp. Nonetheless, the April 2021 examination complies with both Correia and Sharp and does not support assignment of an increased rating for either knee based on limitation of motion. As noted above, ROM during the April 2021 examination was normal for both knees and the examiner estimated that there would be no additional loss following repeated use over time and during flare-ups. The Board has also considered whether separate ratings can be assigned under any other diagnostic codes. Meniscal cartilage conditions are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a maximum 20 percent evaluation. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. This is the only schedular rating assignable under Diagnostic Code 5259. In this case, there is MRI evidence of bilateral stable horizontal tear of the medial meniscus in both knees. See VA orthopedic surgery consult dated November 15, 2017. Because the Veteran has been found to have bilateral meniscus condition, the Board will afford him the benefit of the doubt, and find that 10 percent ratings can be assigned for each knee under Diagnostic Code 5259 from November 15, 2017, the date of the MRI. The Board acknowledges that Diagnostic Code 5259 is for symptomatic removal of the semilunar cartilage, which generally applies only in cases where a veteran has already had surgery on his cartilage condition. While the Veteran has not undergone any surgery, the Board accepts that he has a meniscus condition, but this condition is not sufficiently symptomatic to warrant a 20 percent rating under Diagnostic Code 5258. The May 2018 and April 2021 VA examiners did not find that the Veteran had a current meniscus condition, or any symptoms associated with a meniscus condition. The Board therefore does not find that he had frequent episodes of "locking," pain, and effusion due to this meniscal condition. The Board therefore finds that a rating by analogy to Diagnostic Code 5259 is the only code that is appropriate for this condition, and a 10 percent rating, but no higher, is awarded from November 15, 2017. There is also no evidence of meniscal conditions prior to the November 2017 MRI. Accordingly, no rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5258 or 5259 is warranted prior to November 15, 2017. Next, consideration has also been given to assignment of separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for recurrent subluxation or lateral instability of the knees. During the pendency of the appeal, the rating criteria for evaluating recurrent subluxation or lateral instability of the knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257 were amended, effective February 7, 2021. 85 Fed. Reg. 76453. Prior to February 7, 2021, Diagnostic Code 5257 provided a 10 percent disability rating for slight recurrent subluxation or lateral instability of the knee. A 20 percent disability rating was warranted for moderate recurrent subluxation or lateral instability of the knee. Severe recurrent subluxation or lateral instability of the knee warranted a 30 percent disability rating. The United States Court of Appeals for Veterans Claims recently held that nothing in Diagnostic Code 5257, under the pre-amendment rating criteria, provided that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347, 349 (2018). The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.38 C.F.R. § 4.6. 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. Under the amended criteria for rating recurrent subluxation or instability of the knee, a 10 percent disability rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane, crutches, walker) or bracing for ambulation. A 20 percent disability rating is warranted for either: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation warrants a maximum 30 percent disability rating. Under the amended criteria for rating patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker warrants a 20 percent rating. A maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Diagnostic Code 5257, Note (1), as amended, defines the patellofemoral complex as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) instructs that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). Here, the amendments to the rating schedule do not have any retroactive application. In this case, prior to February 7, 2021, only the old rating criteria for rating instability of the knee may be considered; however, from February 7, 2021, both the old and new criteria may be considered, and the criteria that is more favorable to the Veteran will be applied The Veteran has reported that his knees give out on him and that he uses knee braces for stability. May 2018 VA examination report; VA physical therapy note dated November 2, 2017. Although joint stability tests during the period on appeal have been negative for objective evidence of joint instability, as noted above, nothing in 38 C.F.R. § 4.71a, Diagnostic Code 5257 (as applied prior to February 7, 2021) requires that medical evidence be favored over lay evidence with respect to that Code. See English, 30 Vet. App. at 349. Here, the Veteran is competent to report bilateral knee instability, and there is no reason to doubt his credible assertions. The Veteran's reports are consistent with mild recurrent subluxation or lateral instability of the right and left knees. Accordingly, based on the pre-February 7, 2021 rating criteria, separate 10 percent ratings for right and left knee instability are warranted from November 2, 2017, the date that the Veteran first reported bilateral knee instability to treatment providers. However, there is no lay or medical evidence of right or left knee instability prior to November 2, 2017. This is the first date that there is any evidence of instability, including in the Veteran's own lay statements. Therefore, assignment of separate ratings for right and left knee instability prior to November 2, 2017 is not warranted. Furthermore, the evidence does not support assignment of disability ratings in excess of 10 percent for right and left knee instability. In this regard, with regard to the pre-February 7, 2021 criteria, there is no objective evidence of right or left knee instability at any time during the period on appeal. There is no indication that the Veteran's reported instability has caused any clinically observable impairment, or that it has impacted his ability to walk or to use his knees. The Board finds that to constitute more than slight instability, there should be at least some observable impact of that instability on the functioning of the knees. Therefore, the right and left knee instability does not more nearly approximate moderate recurrent subluxation or lateral instability of the knee. With regard to the post-February 7, 2021 rating criteria, although the Veteran has a diagnosis of bilateral patellofemoral syndrome, a condition of the patellofemoral complex, there is no evidence that the patellofemoral condition has required surgical repair, as is required for a 20 percent rating based on patellar instability. Furthermore, there is no evidence of sprain, incomplete ligament tear, or complete ligament tear in either knee. Accordingly, higher 20 percent ratings based on the amended criteria for rating recurrent subluxation or instability of the knee are not warranted. Finally, the Board notes that the May 2018 examiner indicated that the Veteran had bilateral shin splints in the past, although this condition had resolved. There is no evidence indicating that the Veteran's past shin splints were caused by his service-connected knee disorders or that they were a symptom of his service-connected disorders, and the Board finds that the application of either the prior version of 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020) (impairment of the tibia and fibula) or the revised Diagnostic Code 5262 (2021), which specifically includes criteria for shin splints, is not appropriate. Post-Operative Right Ear with Tympanic Membrane Patch The service-connected post-operative right ear with tympanic membrane patch is currently rated as noncompensable under 38 C.F.R. § 4.87, Diagnostic Code 6299-6211. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The hyphenated codes for the Veteran's post-operative right ear with tympanic membrane patch reflect that an unlisted disability of the ear is the service-connected disability under Diagnostic Code 6299 and tympanic membrane, perforation of is the basis of the rating assigned under Diagnostic Code 6211. Under Diagnostic Code 6211, a noncompensable rating is the maximum rating available for perforation of the tympanic membrane. Nonetheless, assignment of a rating under alternative diagnostic codes has been considered. During the period on appeal, the Veteran has experienced symptoms including tinnitus, vertigo, a metallic taste in the mouth, and hearing loss due to his post-operative right ear with tympanic membrane patch. Of these disabilities, tinnitus, vertigo, and metallic taste in the mouth (or hypogeusia) are already service-connected with the following ratings assigned: (1) a 10 percent rating for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260; (2) a 10 percent rating for vertigo under 38 C.F.R. § 4.87, Diagnostic Code 6299-6211; and (3) a noncompensable disability rating for hypogeusia under 38 C.F.R. § 4.87a, Diagnostic Code 6276 (all effective from January 28, 2016). As separate ratings have already been assigned for tinnitus, vertigo, a metallic taste in the mouth, this decision does not address these symptoms associated with the post-operative right ear with tympanic membrane patch. However, the Veteran also has a current diagnosis of hearing loss in the right ear as of January 26, 2017 (as discussed in the section below). See 38 C.F.R. § 3.385. Furthermore, in an August 2016 VA addendum, a VA examiner opined that the Veteran's hearing loss was related to his in-service stapedectomies because hearing loss is a symptom "that can occur post operatively." Accordingly, service connection for a right ear hearing loss disability is warranted as of January 26, 2017, and as such, the Veteran's hearing impairment will be rated as a bilateral hearing loss disability as of January 26, 2017. In addition, a July 2016 VA examiner indicated that the Veteran had a diagnosis of otosclerosis in both ears from 2002 onwards. Thereafter, an August 2018 examiner opined that the Veteran's bilateral otosclerosis was due to his bilateral in-service stapedectomies. Similarly, an April 2021 examiner indicated that the Veteran had developed tympanosclerosis bilaterally as a result of the stapedectomies. However, 38 C.F.R. § 4.87, Diagnostic Code 6202, which rates otosclerosis, instructs that otosclerosis be evaluated based on hearing impairment. Given that this decision has awarded a separate rating for a right ear hearing loss disability from January 26, 2017, no additional rating under Diagnostic Code 6202 is warranted. Hearing Loss Disability Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated based on a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. Table VI calculates the numeric designation of hearing impairment based on puretone threshold average and speech discrimination. The designated Roman numeral is located at the point on the chart where the percentage of speech discrimination (horizontal rows) and puretone threshold average (vertical columns) intersect. Table VIa calculates the numeric designation of hearing impairment based only on puretone threshold average; and, it is used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under 38 C.F.R. § 4.86 (cases involving exceptional patterns of hearing impairment as explained below). For cases involving exceptional patterns of hearing impairment, the schedular criteria provides that, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. The numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Each ear will be evaluated separately. After the appropriate Roman numeral is designated for each ear, these Roman numerals are applied to Table VII to ascertain the corresponding rating. If hearing loss is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). However, under 38 C.F.R. § 3.383(a), compensation is payable for hearing loss in both ears as if both disabilities were service-connected if: (1) hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more; (2) hearing impairment in the non-service-connected ear, as measured by audio thresholds or speech discrimination scores, meets the criteria to be considered a disability under 38 C.F.R. § 3.385; and (3) the non-service-connected disability is not the result of the veteran's own willful misconduct. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). As discussed above, the Veteran was service connection for only a left ear hearing loss disability prior to January 26, 2017, and has now been awarded service connection for a right ear hearing loss disability since January 26, 2017. During the period on appeal, the Veteran received an initial VA examination for his left ear hearing loss disability in August 2002. The puretone thresholds in decibels recorded during the August 2002 examination were as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 30 20 25 25 30 Left 25 35 40 45 45 Average puretone threshold was 25 decibels in the right ear and 41 decibels in the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 96 percent for the right ear and 96 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Given the above puretone threshold averages and speech discrimination testing, the Veteran did not have a diagnosis of a right ear hearing disability for VA purposes at the time of the August 2002 examination. The Veteran next received a VA examination for his left ear hearing loss disability in January 2017. The puretone thresholds in decibels recorded during the January 2017 examination were as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 45 55 45 50 45 Left 30 40 40 45 60 Average puretone threshold was 49 decibels for the right ear and 46 decibels for the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 100 percent for the right ear and 96 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Functional impacts, as stated by the Veteran, included that the "hearing loss causes arguments in my marriage" because "the TV stays up and it runs everyone away from me." The Veteran next received a VA examination for his left ear hearing loss disability in May 2018. The puretone thresholds in decibels recorded during the May 2018 examination were as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 45 50 45 50 60 Left 35 45 40 50 55 Average puretone threshold was 51 decibels for the right ear and 48 decibels for the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 92 percent for the right ear and 94 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Functional impacts, as stated by the Veteran, included "difficulty hearing conversations, and communicating effectively." The Veteran most recently received a VA examination for his left ear hearing loss disability in May 2021. The puretone thresholds in decibels recorded during the May 2021 examination were as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 40 50 45 55 50 Left 30 45 45 50 65 Average puretone threshold was 50 decibels for the right ear and 51 decibels for the left ear. Speech discrimination testing using the Maryland CNC word list revealed scores of 94 percent for the right ear and 86 percent for the left ear. The examiner certified that use of speech discrimination testing was appropriate. Functional impacts, as stated by the Veteran, included waking "everyone up with the TV," and having difficulty communicating with family members and over the phone. He "[a]sks for repetitions" and experienced "[i]ncreased listening effort and fatigue." Initially, there is no evidence that the Veteran suffered from an exceptional pattern of hearing impairment as defined by 38 C.F.R. § 4.86 at any time during the period on appeal. First, regarding the period prior to January 26, 2017, application of the Veteran's puretone threshold averages and speech discrimination scores from the August 2002 examination to 38 C.F.R. § 4.85, Table VI, results in a numerical hearing impairment of Level I for the service-connected left ear. Assigning a numerical hearing impairment of Level I for the nonservice-connected right ear and combining with Level I impairment in the left ear using 38 C.F.R. § 4.85, Table VII results in a noncompensable disability rating. Accordingly, prior to January 26, 2017, assignment of a compensable disability rating for the service-connected left ear hearing loss disability is not warranted. Turning to the period from January 26, 2017, application of the Veteran's puretone threshold averages and speech discrimination scores from the January 2017 examination results in a numerical hearing impairment of Level I for the right ear and Level I for the left ear. Combining Level I impairment in the right ear with Level I impairment in the left ear using 38 C.F.R. § 4.85, Table VII results in a noncompensable disability rating. Furthermore, application of the Veteran's puretone threshold averages and speech discrimination scores from the May 2018 examination results in a numerical hearing impairment of Level I for the right ear and Level for the left ear. Combining Level I impairment in the right ear with Level I impairment in the left ear using 38 C.F.R. § 4.85, Table VII results in a noncompensable disability rating. Finally, application of the Veteran's puretone threshold averages and speech discrimination scores from the May 2021 examination results in a numerical hearing impairment of Level I for the right ear and Level II for the left ear. Combining Level I impairment in the right ear with Level II impairment in the left ear using 38 C.F.R. § 4.85, Table VII results in a noncompensable disability rating. 38 C.F.R. § 3.383(a) does not apply in the present case. Importantly, as noted above, the assignment of disability ratings for hearing impairment is derived primarily from a mechanical formula based on levels of puretone threshold average and speech discrimination. See Lendenmann, 3 Vet. App. at 345. VA examiners during the period on appeal recorded findings regarding the functional impact of the Veteran's bilateral hearing loss disability on his daily life and occupational functioning. Martinak, 21 Vet. App. at 455-56. In particular, functional impacts of the Veteran's hearing impairment have included difficulty understanding in-person speech, phone speech, and the television, asking others to repeat themselves, and increased listening effort and fatigue. However, functional impairment such as difficulty hearing speech is contemplated by the schedular criteria for hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, there is no basis for consideration of an extraschedular rating. Given the above, the evidence persuasively shows that the criteria for a compensable disability rating for the service-connected hearing loss disability, rated as unilateral (left ear) hearing loss prior to January 26, 2017 and bilateral hearing loss from January 26, 2017, is not warranted at any time during the period on appeal. In reaching the conclusions discussed above, the Board has considered the benefit of the doubt rule, but finds that the majority of the evidence is persuasively against the assignment of any greater or additional ratings than those now assigned. See Lynch v. McDonough, 21 F. 4th 776 (2021). Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.