Case A26018676

STEVEN D. REISS · 2026 · Case ID: A26018676

DENIED

Summary

The veteran, who served in the United States Marine Corps from September 2005 to January 2007, appeals the denial of earlier effective dates for several granted benefits and increased ratings for various conditions. The veteran sought earlier effective dates for 20 percent ratings for left and right ankle disabilities, a total disability rating for individual unemployability (TDIU), and Dependents' Educational Assistance (DEA). The veteran also appealed the denial of increased ratings for right and left foot metatarsal fractures, right knee subluxation, right knee limitation of motion, and a left knee disability. The Board reviewed evidence dated prior to September 15, 2022, finding no pending claims for increased ratings for the ankles or TDIU before that date, nor evidence of a factually ascertainable increase in ankle impairment during the relevant period. The Board denied earlier effective dates for the ankle disabilities, TDIU, and DEA, as the claims and the TDIU award were effective September 15, 2022, and no earlier entitlement was established. For the foot and knee claims, the Board denied increased ratings due to the veteran's failure to report for scheduled VA examinations without good cause, citing 38 C.F.R. § 3.655(b). The Board noted that a current examination was not necessary for the right knee subluxation, but found the veteran did not meet the criteria for a higher rating under Diagnostic Code 5257, as there was no evidence of a complete ligament tear or patellar instability.

Rationale

No pending claim for increased rating prior to Sep 15, 2022; No factually ascertainable increase in impairment during relevant period; No clinical indication of increased impairment

Service Branch

MARINE CORPS

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Diagnostic Code

5257

Docket No.

250808-570691

Full Decision Text

Citation Nr: A26018676
Decision Date: 03/03/26 Archive Date: 03/03/26

DOCKET NO. 250808-570691
DATE: March 3, 2026

ORDER

An effective date earlier than September 15, 2022, for the award of a 20 percent rating for a left ankle disability is denied.

An effective date earlier than September 15, 2022, for the award of a 20 percent rating for a right ankle disability is denied.

An effective date prior to September 15, 2022, for the award of a total disability rating for individual unemployability (TDIU) is denied.

An effective date prior to September 15, 2022, for the award of Dependents' Educational Assistance (DEA) is denied.

A rating in excess of 30 percent for residual of right foot metatarsal fracture is denied.

A rating in excess of 30 percent for residual of left foot metatarsal fracture is denied.

A rating in excess of 20 percent for subluxation of the right knee is denied.

A rating in excess of 10 percent for limitation of motion of the right knee is denied.

A rating in excess of 10 percent for a left knee disability is denied.

FINDINGS OF FACT

1. There is no pending claim for increased rating for an ankle disability prior to September 15, 2022, and it is not factually ascertainable that an ankle disability increased during the one-year period prior to September 15, 2022.

2. There is no pending claim for TDIU prior to September 15, 2022, and it is not factually ascertainable that the Veteran became unemployable due to service-connected disability during the one year period prior to September 15, 2022.

3. Prior to September 15, 2022, the Veteran did not qualify for DEA benefits.

4. The Veteran failed to report for examinations that were necessary to decide his claims for increased rating for left knee disability, right and left foot disability, and limitation of motion of the right knee and has not provided good cause.

5. The right knee subluxation is not due to complete ligament tear and the Veteran does not have patellar instability.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to September 15, 2022, for the award of a 20 percent rating for a left ankle disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

2. The criteria for an effective date prior to September 15, 2022, for the award of a 20 percent rating for a right ankle disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

3. The criteria for an effective date prior to September 15, 2022, for the award of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

4. The criteria for an effective date prior to September 15, 2022, for the award of DEA benefits have not been met. 38 U.S.C. §§ 3501, 5110; 38 C.F.R. §§ 3.807, 21.3021.

5. The criteria for a rating in excess of 30 percent for residual of right foot metatarsal fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5284.

6. The criteria for a rating in excess of 30 percent for residual of left foot metatarsal fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5284.

7. The criteria for a rating in excess of 20 percent for subluxation of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5257.

8. The criteria for a rating in excess of 10 percent for limitation of motion of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655
3.655, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5284.

7. The criteria for a rating in excess of 20 percent for subluxation of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5257.

8. The criteria for a rating in excess of 10 percent for limitation of motion of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5003.

9. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.655, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5003.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Marine Corps from September 2005 to January 2007.

In a December 2022 rating decision, the agency of original jurisdiction (AOJ) granted 20 percent ratings for each ankle disability and denied increased ratings for the right and left foot and right and left knee disabilities and a TDIU.

In August 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the effective dates assigned for the increased ratings for the ankle disabilities, the ratings assigned for the ankle, foot, and knee disabilities, and entitlement to a TDIU.

In a September 2023 rating decision, the AOJ denied the claims.

In August 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the September 2023 decision.

In September 2024, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the September 2023 decision. In the decision, the AOJ granted a TDIU and eligibility to DEA effective September 15, 2022; the AOJ otherwise denied the claims.

In the August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. The Veteran indicated disagreement with the effective dates assigned for the increased ratings for the ankle disabilities, TDIU, and DEA and the ratings assigned for the knee and feet disabilities.

The Board may only consider the evidence of record at the time of the September 2023 AOJ decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

EARLIER EFFECTIVE DATES

Under the modernized review system, the effective date of an award of disability compensation shall be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in paragraph (c) of this section within one year of the issuance of the decision. See 38 C.F.R. § 3.2500(h).

Specific to claims for increased rating, if an increase in disability occurred within one
considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

EARLIER EFFECTIVE DATES

Specific to claims for increased rating, if an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2).

Ankle Disabilities

In a December 2019 rating decision, the AOJ granted service connection for right and left ankle disabilities and assigned a 10 percent rating for each ankle disability.

In August 2020, VA received a VA form 21-526EZ with claims including increased rating for the right ankle disability. In a September 2020 rating decision, the AOJ denied the claim for an increased rating for the right ankle disability.

On September 15, 2022, VA received a VA Form 21-526EZ with claims interpreted to include increased rating for each ankle disability.

In the December 2022 rating decision, the AOJ granted a 20 percent rating for each ankle disability effective September 15, 2022. The Veteran contends that an earlier effective date is warranted.

The Board has reviewed the evidence dated prior to September 15, 2022, but finds there is no pending claim for increased rating for either ankle prior to September 15, 2022.

As noted above, an effective date for an increase in compensation can only predate the date of receipt of the claim if there is a "factually ascertainable" increase in the condition in the year prior to the date of the receipt of the claim. The evidence does not suggest a factually ascertainable increase in either ankle disability in the year prior to September 15, 2022. There is no clinical indication of an increase during this period. The October 2022 VA examination record and treatment records also do not reveal a history of increased impairment during this period based on which an earlier effective date could be assigned in accordance with regulation. Accordingly, an effective date earlier than September 15, 2022, is not warranted. In making this determination, the Board notes that the Veteran has presented no contention in support of the claims for an earlier effective date.

TDIU

On September 15, 2022, VA received a VA form 21-8940 reporting unemployability due to bilateral foot and ankle disabilities, psychiatric disability, lumbar spine disability, and Wolf Parkinson White disease. Ultimately, a TDIU were assigned effective September 15, 2022. The Veteran seeks an earlier effective date.

The Board has reviewed the evidence dated prior to September 15, 2022, but finds there is no pending claim for a TDIU prior to September 15, 2022. The first VA form 21-8940 was received on September 15, 2022; there is no formal claim for TDIU prior to that date. There was also no pending claim for increased rating that a claim for a TDIU that could have raised an informal claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009).

As noted above, an effective date for an increase in compensation can only predate the date of receipt of the claim if the increase occurred during the one-year period prior to the date of the veteran's claim. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2)).

The Board finds the evidence does not suggest a factually ascertainable increase in the Veteran's occupational impairment during the one-year period prior to the receipt of the claim for a TDIU. The record indicates that the Veteran last worked in September or October 2020, reportedly due to the service-connected disabilities; as such, the "worsening" more than one year prior to his claim for TDIU.

In sum, the Board finds there is no pending claim prior to September 15, 2022, and no clinical indication that an increase in service-connected disability rendered the Veteran unemployable between September 15, 2021, and September 15, 2022. Gaston. The Veteran has presented no contention in support of the claim for an earlier effective date. Accordingly, an effective date earlier than September 15, 2022, for the award of a TDIU is not warranted.

DEA

The Board's denials of earlier effective dates precludes the assignment of an effective date prior to September 15, 2022, for the award of DEA benefits. The currently assigned effective date of September 15, 2022, for basic eligibility for DEA benefits was directly related to the award of a TDIU. Eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, and the effective date of such eligibility cannot precede the September 15, 2022, effective date. Accordingly, the assignment of an effective date earlier than September 15, 2022, for the award of eligibility to DEA benefits under Chapter 35, is not warranted.

INCREASED RATINGS

The record includes VA treatment records and October 2022 (feet and right knee) and December 2022 (left knee) VA examination records. The record indicates that the Veteran was scheduled for examination in September 2023, and informed of the scheduled examination, but failed to report for the VA examination. The examination records would have provided updated medical information. The Veteran did not provide good cause for the failure to report or request that the examination be rescheduled.

When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b).

The Board finds examination was necessary to determine the proper rating for the Veteran's service-connected right and left foot disabilities, left knee disability, and limitation of motion of the right knee disability particularly given the histories of medication use to ameliorate symptoms at the 2022 examinations. See Ingram v. Collins, 38 Vet. App. 130, 134 (2025); Jones v. Shinseki, 26 Vet. App. 56 (2012). These claims must be denied pursuant to section 3.655(b) given the Veteran's failure to report for VA examination without good cause.

A current examination was not necessary to determine the proper rating for the subluxation of the right knee. The Board finds that matter may be adjudicated based on the record. 38 C.F.R. § 3.655(a).

The October 2022 VA examination record reports that there was recurrent subluxation or persistent instability of the right knee. There was not current or repaired ligament tear (sprain) and the Veteran did not require a prescription for a cane, walker, crutch, or brace for ambulation. There was not recurrent patellar instability. There was not a meniscal condition and the Veteran had not undergone surgery.

The service-connected subluxation is rated at 20 percent under 38 C.F.R. § 4.71a Diagnostic Code 5257. The 20 percent rating was assigned under the version of Diagnostic Code 5257 in effect prior to February 7, 2021.
(a).

Diagnostic Code 5257 contains two sections for rating other impairment of the knee. The first is for recurrent subluxation or instability. The second is for patellar instability.

Regarding recurrent subluxation and instability, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear that 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. 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 higher rating is not warranted under Diagnostic Code 5257. There is no evidence, to include history, of complete ligament tear as is explicitly required for a higher rating under the subluxation section. The record also does not show patellar instability. Thus, the claim must be denied. In making this determination, the Board notes that the Veteran has presented no contention in support of the claim for increased rating for right knee subluxation.

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Snyder, N.

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.

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