KNEE IMPAIRMENT OF

Summary

The veteran, who served with multiple periods of service between June 1985 and September 2003, appeals the denial of higher disability ratings for right knee instability. The Board previously granted service connection for a right knee disability, assigning a 10 percent rating initially and later a 20 percent rating for specific periods. The veteran contested these ratings, seeking higher percentages for the periods of May 30, 2012, to May 13, 2024, and from May 13, 2024, onwards. The case has been subject to multiple remands from the Board and the Court of Appeals for Veterans Claims to obtain adequate medical opinions and clarify rating criteria. The Board reviewed VA examinations from January 2014 through December 2021, noting consistent findings of normal knee stability and no history of recurrent subluxation or lateral instability, despite the veteran's reports of occasional instability and use of a brace for pain. The Board found that the evidence did not demonstrate symptoms meeting the criteria for moderate or severe instability, nor did it consistently show the need for prescribed assistive devices or braces for instability as required by the rating schedule. The Board also addressed the veteran's contention regarding medication use, clarifying that medication for pain does not ameliorate instability and cannot be considered for rating purposes. Ultimately, the Board denied higher ratings for both periods, finding the evidence did not support ratings exceeding 10 percent for the earlier period and 20 percent for the later period.

Rationale

VA examinations from January 2014 to December 2021 showed normal knee stability.; Lay and medical evidence did not demonstrate recurrent subluxation or dislocation.; Veteran's description of 'loose motion' and occasional brace use did not meet criteria for moderate instability.

Full Decision Text

Citation Nr: 26005092
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 15-35 511
DATE: April 30, 2026

ORDER

For the initial rating period from May 30, 2012 to May 13, 2024, a disability rating in excess of 10 percent for right knee instability is denied.

For the initial rating period from May 13, 2024, a disability rating in excess of 20 percent for right knee instability is denied.

FINDINGS OF FACT

1. For the initial rating period from May 30, 2012 to May 13, 2024, the right knee instability has not manifested as moderate instability or recurrent subluxation.

2. For the initial rating period from May 13, 2024, the right knee instability has manifested as not more than moderate instability, with repaired complete ligament tear causing persistent instability for which a medical provider prescribed a brace for ambulation.

CONCLUSIONS OF LAW

1. For the initial rating period from May 30, 2012 to May 13, 2024, the criteria for a rating higher than 10 percent for right knee instability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257.

2. For the initial rating period from May 13, 2024, the criteria for a rating higher than 20 percent for right knee instability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, served on active duty from June 1985 to August 1985, from December 1990 to September 1991, and from January 2003 to September 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision from the Regional Office (RO), which, in pertinent part, granted service connection for a right knee disability, assigning a 10 percent initial disability rating (effective May 30, 2012).  In June 2020, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge.  The hearing transcript was associated with the record.  

In an April 2022 Board decision, the Board granted a 20 percent rating, but no higher, for the right knee disability from May 30, 2012 under Diagnostic Code 5258.  The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court).  In a February 2023 Joint Motion for Partial Remand (JMPR), the parties agreed that a remand was warranted for the Board to obtain a new or addendum opinion to the December 2021 VA examination report that addressed range of motion of the right knee in active motion, passive motion, weight-bearing, and non-weight-bearing.  See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016).  

Additionally, the parties to the JMPR agreed that the Board should provide adequate reasons and bases regarding whether a separate rating was warranted for recurrent subluxation or lateral instability under Diagnostic Code 5257.

In June 2023, the Board remanded the issue on appeal to obtain an addendum medical opinion from the December 2021 VA examiner or a new VA knee examination if the December 2021 VA examiner was not available.  In April 2024, the Board remanded the matter to obtain a new VA knee examination consistent with the Board's June 2023 remand directives, as it appeared the VA examiner who provided an examination and opinion in December 2021 was not available for an addendum opinion.  Based on these actions, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the June 2023 and April 2024 Board remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998),
 not available.  In April 2024, the Board remanded the matter to obtain a new VA knee examination consistent with the Board's June 2023 remand directives, as it appeared the VA examiner who provided an examination and opinion in December 2021 was not available for an addendum opinion.  Based on these actions, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the June 2023 and April 2024 Board remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). 

Most recently, in a February 2025 decision, the Board granted a separate 10 percent rating, but no higher, for right knee instability, for the initial rating period from May 30, 2012 to May 13, 2024, and granted a 20 percent rating, but no higher, for right knee instability for the initial rating period from May 13, 2024.  The Veteran filed an appeal to the Court contesting the Board's February 2025 decision regarding rating percentages assigned.  In December 2025, on the basis of a JMPR, the Court vacated and remanded the Board's decision regarding the right knee instability as to the denial of a rating higher than 10 percent for the right knee instability from May 30, 2012 to May 13, 2024 and denial of a rating higher than 20 percent for right knee instability from May 13, 2024.  The parties to the JMPR agreed that the Board had not provided adequate reasons or bases because it had not objectively defined the subjective terms in the context of 38 C.F.R. § 4.71a, Diagnostic Code 5257.  The December 2025 JMPR did not vacate the grant of a 10 percent rating for right knee instability for the initial rating period from May 30, 2012 to May 13, 2024, and the grant of a 20 percent rating for right knee instability for the initial rating period from May 13, 2024.

The December 2025 JMPR specifically stated that the Veteran was not challenging the portion of the Board's decision that denied a rating higher than 20 percent for a right knee meniscal tear, osteochondromalacia, and arthritis status post arthroscopic surgeries under Diagnostic Code 5258 and denied separate or higher ratings under other diagnostic codes for rating the knee.  The Board notes the Veteran is also separately rated under Diagnostic Code 5261 for painful limitation of extension of the right knee.  However, only rating of the instability of the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257 is before the Board under the JMPR.  

Disability Rating Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

The Veteran has appealed from the initial rating assigned.  In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered.  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  


 after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

The Veteran has appealed from the initial rating assigned.  In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered.  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment).

Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability.  Under Diagnostic Code 5257, where impairment is severe, moderate, or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively.  38 C.F.R. § 4.71a.  The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule.  According to Merriam Webster's Collegiate Dictionary (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.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions."  38 C.F.R. § 4.6.  Lay evidence as to lateral instability should be weighed on a case-by-case basis.  English v. Wilkie, 30 Vet. App. 347 (2018).

Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system.  The amendments divided Diagnostic Code 5257 into the two subsections recurrent subluxation or instability and patellar instability, each with its own criteria.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

For recurrent subluxation or instability, three ratings are available.  A 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A 20 percent is warranted under one of two scenarios: sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.  Id. 

For patellar instability, three ratings are available.  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
ament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.  Id. 

For patellar instability, three ratings are available.  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 20 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 one of the following: a brace, cane, or walker.  A 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.  Id. 

Two Notes accompany the revised Diagnostic Code 5257.  Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Note 2 states 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 word "persistent" as used in the diagnostic code is not defined in the VA Rating Schedule.  "Persistent" is defined as "continuing without change" or "continuing to exist despite treatment."  See Merriam-Webster Dictionary, "Persistent" Definitions 1-2(b), merriam-webster.com/dictionary/persistent.

In Jones v. Shinseki, 26 Vet. App. 56, 61 (2012), the Court held that when assigning a disability rating, the Board may not consider the ameliorative effects of medication when those effects are not explicitly contemplated by the rating criteria.  Recently, in Ingram v. Collins, 38 Vet. App. 130 (2025), the Court reaffirmed its central holding in Jones and held that, since the applicable diagnostic codes and special regulations pertaining to musculoskeletal disabilities do not explicitly contemplate medication use, the Board must discount the beneficial effects of medication when assigning a rating for a musculoskeletal disability.

1. For the initial rating period from May 30, 2012 to May 13, 2024, a disability rating in excess of 10 percent for right knee instability is denied.

The Veteran appeals for an initial disability rating higher than 10 percent for the right knee instability for the rating period from May 30, 2012 to May 13, 2024.  See April 2026 Informal Hearing Presentation; see also December 2025 appellant brief.  

After a review of all evidence, lay and medical, the persuasive weight of the evidence is against a finding that the symptoms and functional impairment of the right knee instability more nearly approximate the criteria for a disability rating in excess of 10 percent from May 30, 2012 to May 13, 2024.  From May 30, 2012 to May 13, 2024, the right knee manifested in not more than slight instability as set forth under Diagnostic Code 5257 (prior to February 7, 2021 changes).  

VA provided multiple examinations during the relevant rating period.  At a VA examination in January 2014, the examiner assessed no history of patellar subluxation or dislocation and no joint instability.  The Veteran reported the use of a right knee brace for prolonged walks.  

At a VA examination in December 2014, the examiner assessed normal strength in the right knee and no history of recurrent subluxation or lateral instability, and the joint stability testing was normal.  The Veteran denied using an assistive device and reported the use of meloxicam for pain.  

At a VA examination in January 2016, the Veteran reported no giving way since the anterior cruciate ligament (ACL) repair in 2005 and no use of a cane or other appliance.  The examiner assessed normal strength in the right knee, no history of recurrent subluxation or lateral instability, and the joint stability testing was normal.  

At a VA examination in September 2020, the examiner assessed normal strength in the right knee, no history of recurrent subluxation or lateral instability, and the joint
 the right knee and no history of recurrent subluxation or lateral instability, and the joint stability testing was normal.  The Veteran denied using an assistive device and reported the use of meloxicam for pain.  

At a VA examination in January 2016, the Veteran reported no giving way since the anterior cruciate ligament (ACL) repair in 2005 and no use of a cane or other appliance.  The examiner assessed normal strength in the right knee, no history of recurrent subluxation or lateral instability, and the joint stability testing was normal.  

At a VA examination in September 2020, the examiner assessed normal strength in the right knee, no history of recurrent subluxation or lateral instability, and the joint stability testing was normal.     

At a VA examination in July 2021, the examiner assessed no history of recurrent subluxation, lateral instability, or patellar instability.  The Veteran reported the use of topical creams and over-the-counter medications for pain and swelling (notably, not for instability).  The Veteran was not prescribed any assistive devices.  The Veteran reported walking with a limp during flareups.  

At a VA examination in December 2021, the examiner assessed no history of recurrent subluxation, lateral instability, or patellar instability, and the joint stability testing was normal.  The Veteran denied a prescribed assistive device but reported using a brace for the right knee occasionally.  The Veteran reported walking with a limp during flareups of pain (which is, notably, not a symptom of instability or subluxation in this case).  The Board notes that, while the Board previously indicated in a June 2023 decision that the December 2021 VA examination was inadequate specifically as to range of motion testing in passive motion in weight-bearing and in nonweight-bearing (which pertains to other knee ratings but not to instability), thereby requiring a new examination, the December 2021 was not inadequate as to history and assessments related to the question of knee stability.

In September 2015, the Veteran reported loose motion requiring a brace for the knee.  See September 2015 VA Form 9.  VA treatment records show that the Veteran had a remote history of some instability in the right knee that required surgery in 2001 and 2005, and a right knee brace was prescribed for knee pain in 2014 and was worn occasionally for assistance with ambulation.  See September 2015 correspondence and VA treatment records April 2014 (indicating prescribed knee sleeve for pain), June 2021 (indicating history of right knee instability resulting in cadaveric replacement), February 2023 (indicating no buckling, locking, or giving way), and March 2024 (indicating negative right knee ligamentous laxity); but see also VA examinations January 2014, December 2014, January 2016, September 2020, and December 2021.  At a hearing in June 2020, the Veteran reported that the right knee was stable with replacement of the ACL and physical therapy.  

The Veteran raised a new contention post-remand from the Court that the use of medications for the right knee pain affected the right knee instability.  See December 2025 appellant brief.  Diagnostic Code 5257 does not contemplate the use of medication, and the Board may not consider the ameliorative effects of medication.  In this case, the Veteran used prescription and over-the-counter medications, including anti-inflammatory medications, for knee pain and swelling (similar to effusion) symptoms that are rated separately under Diagnostic Code 5258).  The medication was not for instability, and there is no suggestion that the pain medication has any ameliorative effect on instability.  See, e.g., September 2020 VA examination.  While the Board certainly would discount any ameliorative effects of medication that improved the knee instability, the evidence of record in this case does not indicate that medication was used to treat instability or that the pain medications improved knee instability.  

For the relevant period on appeal, VA treatment records and VA examinations did not indicate instability, other than remote instability of the knee by history.  The evidence does not show moderate lateral instability or recurrent subluxation for this rating period.  As noted above, tests of stability in the right knee were within normal limits during the rating period from May 30, 2012 to May 13, 2024, and the lay and medical evidence does not show recurrent subluxation or dislocation of the knee, although the 10 percent rating is acknowledgement of some slight knee instability, notwithstanding it was based on lay reports alone.  Even during the June 2020 Board hearing, the Veteran described the right knee as "stable" and did not endorse any giving way or instability in the right knee.  Such description does not meet the definition of
 instability of the knee by history.  The evidence does not show moderate lateral instability or recurrent subluxation for this rating period.  As noted above, tests of stability in the right knee were within normal limits during the rating period from May 30, 2012 to May 13, 2024, and the lay and medical evidence does not show recurrent subluxation or dislocation of the knee, although the 10 percent rating is acknowledgement of some slight knee instability, notwithstanding it was based on lay reports alone.  Even during the June 2020 Board hearing, the Veteran described the right knee as "stable" and did not endorse any giving way or instability in the right knee.  Such description does not meet the definition of "moderate" or "limited in scope or effect" as the Veteran did not report additional symptoms other than "loose motion," so instability has not been more severe than "slight," and symptoms do not more nearly approximate moderate recurrent subluxation or lateral instability for this stage of rating.  

The evidence also does not demonstrate that there has been a right knee sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribed assistive device or bracing for ambulation under the revised criteria.  See December 2021 VA examination.  While VA treatment records from April 2014 indicated a prescribed knee sleeve for pain in April 2014, the record did not indicate a current prescription for a right knee brace or other assistive device after the revised rating criteria from February 2021 and before a May 2024 VA examination.  See December 2021 VA examination; see also May 2021 VA treatment records (indicating only a prescribed brace and cane for the left knee).  The Veteran did not indicate consistent symptoms of "loose motion" requiring a brace, including for treatment purposes or with examination, and described use of a brace for walking prolonged periods or occasionally.  See January 2014 and December 2021 VA examinations.  Additionally, the evidence does not demonstrate a diagnosed condition involving the patellofemoral complex with recurrent instability after undergoing surgical repair of one or more of the patellofemoral compartments (i.e., the quadriceps tendon, the patella, and/or the patellar tendon) in the right knee.  

As such, a rating in excess of 10 percent is not warranted for the right knee under old or revised Diagnostic Code 5257 from May 30, 2012 to May 13, 2024.  38 C.F.R. § 4.71a.  

2. For the initial rating period from May 13, 2024, a disability rating in excess of 20 percent for right knee instability is denied.

The Veteran appeals for an initial disability rating higher than 20 percent for the right knee instability for the rating stage from May 13, 2024.  See April 2026 Informal Hearing Presentation; see also December 2025 appellant brief.  

After a review of all evidence, lay and medical, the persuasive weight of the evidence is against a finding that the symptoms and functional impairment of the right knee instability more nearly approximate the criteria for a disability rating in excess of 20 percent from May 13, 2024.  From May 13, 2024, the right knee manifested as not more than moderate instability, with repaired complete ligament tear causing persistent instability for which a medical provider prescribed a brace for ambulation.  

At a VA examination in May 2024, the Veteran reported that the right knee gave way "once every couple months" usually in association with the swelling and increased pain.  He reported that he had fallen a few times a year but caught himself before suffering any injury.  The Veteran reported occasional use of a knee brace, specifically using a knee brace for about two days associated with the knee giving way.  The Veteran reported use of ibuprofen and a topical cream as needed.  Upon examination, the VA examiner assessed persistent instability due to complete ligament tear with successful repair, for which VA prescribed a knee brace.  

For the rating period (20 percent stage) from May 13, 2024, the evidence does not demonstrate that there has been an unrepaired or failed repair of complete ligament tear causing persistent instability for which a medical provider has prescribed a brace and an assistive device as required for a higher 30 percent rating under the revised criteria of Diagnostic Code 5257.  Additionally, the evidence does not demonstrate a diagnosed condition involving the patellofemoral complex with recurrent instability after undergoing surgical repair of one or more of the patellofemoral compartments (i.e., the quadriceps tendon, the patella, and/or the patellar tendon) in the right knee.  

A higher disability rating of 30 percent is not warranted from May
 rating period (20 percent stage) from May 13, 2024, the evidence does not demonstrate that there has been an unrepaired or failed repair of complete ligament tear causing persistent instability for which a medical provider has prescribed a brace and an assistive device as required for a higher 30 percent rating under the revised criteria of Diagnostic Code 5257.  Additionally, the evidence does not demonstrate a diagnosed condition involving the patellofemoral complex with recurrent instability after undergoing surgical repair of one or more of the patellofemoral compartments (i.e., the quadriceps tendon, the patella, and/or the patellar tendon) in the right knee.  

A higher disability rating of 30 percent is not warranted from May 13, 2024, under the previous version of Diagnostic Code 5257 for "severe" instability because the evidence does not show that the Veteran was completely prevented from performing simple motions like ambulating (the Veteran was able to ambulate with a brace) or activities of daily living specific to the instability.  Such symptoms that may indicate a level of disability that is "severe" or "very painful or harmful or of a great degree" due to the serious impacts on daily functional impairment are not shown in this case.  See Merriam Webster's Collegiate Dictionary (11th ed. 2007).  The record suggests that, at worst, the right knee gave way every couple of months, which did not indicate a disability picture that more nearly approximated "severe" instability.

The Board has considered the Veteran's contentions that use of medications impacted instability.  As previously discussed herein, the Veteran used injections, prescriptions, and over-the-counter medications for knee pain and swelling or effusion.  Pain and effusion are separate symptoms from instability, which is defined as a "lack of steadiness or stability."  Dorland's Illustrated Medical Dictionary 958 (31st ed. 2007).  Functional instability is the "inability of a joint to maintain support during use."  Id.  The Veteran indicated in various histories that he increased use of medication for treatment of pain, and in May 2024 he indicated that the right knee gave way "once every couple months" usually in association with swelling and increased pain; however, the evidence of record does not indicate that medication was used to treat instability.  

The pain and effusion are separately compensated for under the 20 percent rating under DC 5258 or other limitation of motion code, so for this additional reason cannot be considered when rating knee instability because to do so would violate the rule against pyramiding (paying twice) for the same symptoms or same functional impairment.  See C.F.R. § 4.14.

The Board acknowledges the Veteran's contentions that a higher instability rating is warranted prior to May 2024 and the Veteran's statements that the right knee gave way "once every couple months" and he fell a few times a year but caught himself before suffering any injury, suggesting increased and persistent instability prior to the May 2024 examination.  See December 2025 appellant brief; see also May 2024 VA examination.  In this case, the lay and medical evidence of record that includes the Veteran's own medical histories does not show onset of the giving way and incidents of falls prior to the VA examination in May 2024.  The Veteran specifically denied the knee giving way and falls during VA treatment prior to the May 2024 VA examination.  Contemporaneous VA treatment records in March 2024 indicated negative ligamentous laxity.  See VA treatment records May 2021 (indicating no falls and the Veteran was not a fall risk), February 2023 (indicating no buckling, locking, or giving way), September 2023 (indicating no fall in the last three months), and January 2024 (indicating no falls).  

The VA examination in May 2024 was the first assessed record of persistent instability due to complete ligament tear with successful repair.  The Veteran had the opportunity to report instability symptoms, including the knee giving way and falls, in the various medical histories presented when he was seeking treatment and he is competent to do so; instead, in the various histories presented, he denied the knee giving way and falls.  The Veteran does not represent that there are VA medical records, private treatment records, or lay statements of falls prior to the May 2024 examination.  The Veteran's medical histories presented for treatment purposes are of high probative value because a patient is expected to present an accurate medical history in order to receive good medical care.  

The contemporaneous lay and medical evidence, including the Veteran's own medical histories on many occasions, shows no falls prior to May 2024.  Such lay and medical history reporting symptoms while denying relevant symptoms like instability is likely to reflect accurately the Veteran
 medical histories presented when he was seeking treatment and he is competent to do so; instead, in the various histories presented, he denied the knee giving way and falls.  The Veteran does not represent that there are VA medical records, private treatment records, or lay statements of falls prior to the May 2024 examination.  The Veteran's medical histories presented for treatment purposes are of high probative value because a patient is expected to present an accurate medical history in order to receive good medical care.  

The contemporaneous lay and medical evidence, including the Veteran's own medical histories on many occasions, shows no falls prior to May 2024.  Such lay and medical history reporting symptoms while denying relevant symptoms like instability is likely to reflect accurately the Veteran's physical condition, so is of probative value and weighs persuasively against a finding of falling a few times per year prior to May 2024.  Additionally, the record did not indicate a current prescription for a right knee brace after the revised rating criteria in February 2021 and before the May 2024 VA examination, as discussed previously herein.  

For these reasons, the Board finds that, from May 13, 2024, the right knee manifested as not more than moderate instability, with repaired complete ligament tear causing persistent instability for which a medical provider prescribed a brace for ambulation.  As such, a higher 30 percent rating is not warranted for the right knee under Diagnostic Code 5257 from May 13, 2024.  38 C.F.R. § 4.71a.

 

 

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Beilsmith, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.