KNEE, OTHER IMPAIRMENT OF

K.A. KENNERLY · 2026 · Case ID: A26026839

MIXED

Summary

The veteran, who served in the U.S. Navy from August 1997 to January 1999, appeals the denial of service connection for bilateral ankle conditions and a left hip disability, as well as seeking a higher disability rating for his service-connected left knee. The Board granted a 20 percent disability rating for the left knee under Diagnostic Code 5257 for instability, noting that the veteran's private treatment records indicated moderate lateral instability and that he was prescribed a knee brace for ambulation. The Board also granted an additional 10 percent rating for painful limitation of flexion under Diagnostic Code 5260, affording the veteran the benefit of the doubt for his reported knee pain. The Board denied service connection for bilateral ankle conditions, finding no current disability or evidence of in-service complaints, treatment, or diagnoses, and no functional impairment from the reported pain. The claim for a left hip disability was remanded for a VA examination and opinion to determine the nature and etiology of the hip condition, specifically whether it is secondary to the service-connected left knee disability, as the evidence indicated a possible link but was insufficient for a decision.

Rationale

Private treatment records show moderate lateral instability.; Prescribed knee brace for ambulation under new DC 5257 criteria.; Painful motion with limitation of flexion warrants minimum compensable rating.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5257

Docket No.

210224-167451

Full Decision Text

Citation Nr: A26026839
Decision Date: 03/25/26 Archive Date: 03/25/26

DOCKET NO. 210224-167451
DATE: March 25, 2026

ORDER

Entitlement to a 20 percent disability rating, but no higher, for service-connected left knee meniscal tear and status post anterior cruciate tear (hereinafter left knee disability), is granted.

Entitlement to a separate 10 percent disability rating under Diagnostic Codes 5003-5260 for a left knee disability is granted.

Entitlement to service connection for left ankle condition, to include on a secondary basis, is denied.

Entitlement to service connection for right ankle condition, to include on a secondary basis, is denied.

REMANDED

Entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability, is remanded.

FINDINGS OF FACT

1. The Merriam-Webster Collegiate Dictionary defines "slight" as small in amount; "moderate" as limited in scope or effect; and "severe" as very painful or harmful or of a great degree.

2. The appellant's left knee disability manifested with moderate lateral instability and a complete ligament tear requiring a prescribed brace for ambulation but did not manifest as severe recurrent subluxation or lateral instability or an unrepaired or failed repair of a complete ligament tear with persistent instability and a prescribed assistive device.

3. The appellant's left knee disability is manifested by arthritis and painful limitation of motion that is not compensable under the rating criteria.

4. While the appellant took medication and had injections to treat his left knee, the evidence of record accurately describes his left knee instability without any ameliorative effects of medication.

5. The appellant does not have a right or left ankle disability, including pain plus functional impairment, during the pendency of the claim or recent to the filing of the claim, and there is no evidence the appellant's bilateral ankle pain was due to service or a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 30 percent, but no higher, for service-connected left knee disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5257.

2. The criteria for a separate 10 percent disability rating under Diagnostic Codes 5003-5260 for the service-connected left knee disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5003-5260.

3. The criteria for service connection for a left ankle condition, to include on a secondary basis, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310.

4. The criteria for service connection for a right ankle condition, to include on a secondary basis, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty in the United States Navy from August 1997 and January 1999.

Procedural History

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2021 Higher-Level Review (HLR) rating decision of a February 2021 rating decision issued by the Department of Veterans Affairs (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which continued the appellant's 10 percent disability rating for his left knee and denied service connection for bilateral ankle conditions and a left hip disability. VA timely received the appellant's June 2021 notice of disagreement (NOD), via VA Form 10182, seeking a higher disability rating for his service-connected left knee and service connection for bilateral ankle and left hip disabilities. The appellant selected the Board's Hearing docket. A Hearing was held before the Undersigned Veterans Law Judge (VLJ) in October 2024. A transcript of the proceeding is of record.

Applicable Evidentiary Windows

The Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal, evidence submitted
continued the appellant's 10 percent disability rating for his left knee and denied service connection for bilateral ankle conditions and a left hip disability. VA timely received the appellant's June 2021 notice of disagreement (NOD), via VA Form 10182, seeking a higher disability rating for his service-connected left knee and service connection for bilateral ankle and left hip disabilities. The appellant selected the Board's Hearing docket. A Hearing was held before the Undersigned Veterans Law Judge (VLJ) in October 2024. A transcript of the proceeding is of record.

Applicable Evidentiary Windows

The Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal, evidence submitted by the appellant or his or her representative at the Board hearing, to include testimony provided at the hearing; and evidence submitted within 90 days following the Board hearing. 38 C.F.R. § 20.300(a), 302(a). If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant 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. See also Cook v. McDonough, 36 Vet. App. 175 (2023). With respect to the claims of service connection for a left hip disability, as it is remanded herein, any evidence the Board could not consider will be considered by the AOJ. 38 C.F.R. § 3.103(c)(2)(ii).

Recharacterization of Issue on Appeal

The May 2021 rating decision on appeal was characterized as entitlement to service connection for left hip nerve damage. However, the Board has recharacterized the claim as one for a left hip disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (Vet. App. 2009). In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (CAVC) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. See Clemons, 23 Vet. App. at 5. Accordingly, the Board has classified the issue as one for a left hip disability to account for the totality of the appellant's associated symptoms.

Additionally, the appellant's August 2020 VA 21-526 EZ, Fully Developed Claim also sought service connection for a right knee and right hip disability. These claims were previously denied in a March 1999 rating decision, and VA issued a January 2021 letter informing the appellant the claims had to be on the proper form and were not accepted. Thus, the claims for entitlement to service connection for right knee and right hip disabilities are not a part of this appeal and are not further addressed in this decision.

1. Entitlement to a disability rating of 20 percent, but no higher, for service-connected left knee disability is granted.

The appellant seeks a rating in excess of 10 percent for his service-connected left knee disability. See VA Form 21-526EZ, Fully Developed Claim, August 28, 2020.

Legal Criteria

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).

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. 38 C.F.R. §§ 4.7, 4.21. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. By reasonable doubt is meant on which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(c)(2). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board finds that the veteran is competent to report his symptoms and there is no evidence that his reports are not credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

For increased rating claims, 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) potentially allow for an increase in disability compensation of up to one year prior to the date of claim, if it is factually ascertainable based on all evidence of record that an increase in disability had occurred. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (referencing the "one-year look-back period").

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 (2011).

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; and joints that are actually painful, unstable, or malaligned due to healed injury should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet.
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 (2011).

When assessing musculoskeletal disabilities, VA examiners should test joints involved for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

In addition, flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. When a flare-up is not observable at the time of the examination, 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. See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

During the pendency of the appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The February 2021 changes to the rating criteria for the knee pertain to Diagnostic Code 5257 (instability) and Diagnostic Code 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged.

The appellant's left knee is currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5257.

Under the "old" criteria, DC 5257 ("Knee, other impairment of") provided a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability.

According to the Merriam-Webster Collegiate Dictionary, "slight" means small in amount; "moderate" means limited in scope or effect; and "severe" means very painful or harmful or of a great degree. See www.merriam-webster.com/dictionary (last accessed on February 11, 2026).

Objective medical evidence is not required to establish lateral knee instability under the "old" DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to the "old" DC 5257. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

The "new" DC 5257 ("Knee, other impairment of") provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability.

For recurrent subluxation or instability, a 10 percent rating is warranted 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) 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 br
, 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 rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) 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 maximum 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.

For 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 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 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.

Other DCs related to the knee are also potentially applicable. In this regard, other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See 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 paying compensation twice for the same symptoms or functional impairment).

Potentially applicable are DCs related to the semilunar cartilage, also known as the meniscus. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "'locking,' pain, and effusion into the joint." This is the only rating available under DC 5258. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. This is the only rating available under DC 5259.

Separate ratings may also be assigned for limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005); VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997).

Legal Analysis

The appellant's September 2020 VA Treatment record shows the appellant reported pain in knees with squats, lunges, going up and down, and that his knees grind and pop. However, his left knee range of motion was within normal limits.

The appellant's left knee was evaluated in a November 2020 VA Knee and Lower Leg Condition Disability Benefits Questionnaire (DBQ), which examined the appellant in person and reviewed his records. He was diagnosed with a left knee meniscal tear and posterior cruciate ligament tear. See VA Knee DBQ, November 11, 2020. The DBQ does not specify if the appellant reported left knee flare-ups and stated the appellant reported having functional loss or functional impairment of his knees but did not provide the appellant's description of that functional loss or impairment. Id. His left knee range of motion was normal with no pain, localized tenderness, pain on palpation of the joint or associated soft tissue, or crepitus noted on the examination. Id. The appellant had no range of motion impairment after observed repetitive use or repeated use over time, and pain, weakness, fatigability, or incoordination did not significantly limit his functional ability with repeated use or during a flare-up. Id. He had no additional factors contributing to the disability, normal muscle strength, no ankylosis, and normal joint stability testing. Id.

However, the clinician stated the appellant had not ever had a meniscal condition and provided no symptomatology associated with a meniscal condition although the appellant has a history of
left knee range of motion was normal with no pain, localized tenderness, pain on palpation of the joint or associated soft tissue, or crepitus noted on the examination. Id. The appellant had no range of motion impairment after observed repetitive use or repeated use over time, and pain, weakness, fatigability, or incoordination did not significantly limit his functional ability with repeated use or during a flare-up. Id. He had no additional factors contributing to the disability, normal muscle strength, no ankylosis, and normal joint stability testing. Id.

However, the clinician stated the appellant had not ever had a meniscal condition and provided no symptomatology associated with a meniscal condition although the appellant has a history of and is service connected for a meniscal tear. Id. The clinician also found no other findings, complications, signs or symptoms related to the appellant's left knee, stated the appellant did not use an assistive device, and had no functional impairment due to his left knee. Id. Finally, the clinician remarked that the appellant had no pain on passive range of motion and non-weight bearing and there was no evidence of significant left knee flare-ups. Id.

The appellant also sought private medical treatment for his knee, specifically his old complex tear of lateral meniscus, old peripheral tear of medial meniscus, and localized osteoarthritis. See private treatment record, October 28, 2020. The appellant had worsening left knee pain and mild swelling with stairs and jumping activities. Id. He endorsed occasional catching and instability in his left knee. Id. There was no obvious deformity of the knee, but the appellant had a small knee joint effusion and tenderness to palpation of his medial and lateral joint lines. Id. He had no erythema or warmth and his range of motion with knee extension and flexion were normal, with very mild pain on full terminal knee flexion. Id. The appellant was started on meloxicam for his knees in October 2020. Id.

While the appellant's left knee medical history included a tear of the left ACL and medial meniscus, he had superimposed osteoarthritis as well as a snapping synovial plica of the lateral aspect of the knee. See private treatment record, December 9, 2020. He reported improvement in pain with the meloxicam and physical therapy. Id. He denied locking but endorsed occasional catching and general pain, worsened with stairs, increased activity, or prolonged walking. Id.

The appellant reported the same symptomatology in June 2021 private treatment records, where he continued to have normal knee flexion and extension with mild pain on terminal knee flexion. The appellant received an intra-articular steroid injection of his left knee. See private treatment record, June 7, 2021. He had "a couple of episodes of instability", including when coming down from a ladder, and the appellant was provided a hinged knee brace. See private treatment record, June 30, 2021. Overall, his left knee pain had improved due to the injection. Id.

Finally, the appellant provided lay testimony at the October 2024 Board Hearing. He said he compensates to avoid left knee flare-ups, has pain but still walks around, and has knee instability after sitting and re-standing, with a feeling of knee buckling. He confirmed his doctor prescribed him a knee brace for instability which he wears when walking. See Board Hearing, October 18, 2024.

Based on the evidence of record, the appellant is entitled to a 20 percent rating for left knee instability.

Considering the old criteria of DC 5257, the appellant's private treatment records show his left knee had moderate lateral instability. His private medical records show he had three appointments a few months apart regarding his left knee, all of which contain reports of pain, instability, and buckling, including catching himself from falling when his knee buckled on a ladder. Such lay evidence is sufficient to establish the appellant had moderate lateral instability under the old DC 5257 rating criteria. See English, supra.

However, the evidence of record does not show the appellant's lateral instability was severe as it is not very painful or harmful to a great degree. Therefore, a 30 percent rating for severe recurrent subluxation or lateral instability is not warranted under the old DC 5257 criteria.

Additionally, considering the new DC 5257 criteria as of February 7, 2021, the appellant's records show he has a complete ligament tear causing persistent instability and was prescribed a knee brace for ambulation in June 2021; thus, he meets the requirements of a 20 percent disability rating. He was also not prescribed an assistive device, such as a cane, crutches, or walker; therefore, he does not meet the requirements of a 30
record does not show the appellant's lateral instability was severe as it is not very painful or harmful to a great degree. Therefore, a 30 percent rating for severe recurrent subluxation or lateral instability is not warranted under the old DC 5257 criteria.

While the appellant's November 2020 VA Knee DBQ found no instability on joint testing, the DBQ provides other conflicting information including a diagnosis of a meniscal tear but also states he has not ever had a meniscal tear, as well as providing no appellant description of his functional limitations. Therefore, the appellant's private treatment records, in which he was seeking medical treatment over a period of months, and which are consistent with his October 2024 Board testimony, are more probative than the single November 2020 VA Knee examination.

Moreover, consideration was given to assigning a rating under DC 5258 for cartilage dislocation with frequent episodes of locking, pain, and effusion to the joint, which provides for a single 20 percent rating and DC 5259 providing a single 10 percent rating for removal of cartilage, symptomatic. However, neither DC would provide a more advantageous disability rating for the appellant's left knee.

Limitation of Motion

In addition, the evidence of record does not show any limitation of extension or flexion but does show pain on full knee flexion. Painful joints are entitled to at least the minimum compensable rating for the joint. Therefore, affording the appellant the benefit of the doubt based on his complaints of left knee pain, he is also entitled to a minimum compensable rating of 10 percent for his left knee painful flexion as he is not already compensated based on left knee painful motion. See Esteban, supra; Lyles, supra

The evidence of record also indicates the appellant used medication mostly for left knee pain, including meloxicam and a steroid injection, and that he reported improvement with these medications. See Private treatment record, October 28, 2020, (noting gabapentin increased to 300mg at bedtime); Report of Consultation and Examination, May 18, 2021 (noting currently medicating with gabapentin and topical cream); and VA Back Conditions DBQ, July 29, 2021, and VA Peripheral Nerves Conditions DBQ (noting current treatment of "Gabapentin 300mg twice a day, diclofenac, and over the counter pain medication). However, the evidence does not indicate that such medication in fact provided relief as to the appellant's instability or that if the medication did provide relief, that absent such relief the appellant's disability picture for his left knee instability or painful motion would more nearly approximate the next higher rating under the relevant DC. For example, the appellant's complaints of instability were consistent throughout his private treatment both before and after his medication and he had normal range of motion, and therefore, his treatment records are found to have accurately described the appellant's disability picture without considering any ameliorative effects of medication.

In review, and to be clear, this decision is not denying a higher rating based on any relief or amelioration provided by any medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) ("[T]he Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria").

In sum, appellant's service-connected left knee disability is entitled to a 20 percent disability rating, but no higher, under DC 5257 for instability. The appellant is also entitled to an additional 10 percent disability rating for painful motion for limitation of flexion under DC 5260. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

2. Entitlement to service connection for a left ankle condition is denied.

3. Entitlement to service connection for right ankle condition is denied.

The appellant seeks service connection for bilateral ankle disabilities. See VA 21-526EZ, Fully Developed Claim, August 28, 2020.

Legal Criteria

Establishing service connection generally requires (1) a current disability;
10 percent disability rating for painful motion for limitation of flexion under DC 5260. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

2. Entitlement to service connection for a left ankle condition is denied.

3. Entitlement to service connection for right ankle condition is denied.

The appellant seeks service connection for bilateral ankle disabilities. See VA 21-526EZ, Fully Developed Claim, August 28, 2020.

Legal Criteria

Establishing service connection generally requires (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Arthritis is designated as a chronic disease which is presumed related to service if shown as chronic in service (or within a presumptive period) and when there are subsequent manifestations of the same chronic diseases; or if manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). The United States Court of Appeals for the Federal Circuit clarified the standard for secondary service connection in Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023), finding that secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Id. Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. In the absence of proof of a disability during that period, there can be no valid claim of service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997).

Thus, the threshold question is whether the appellant has had a disability for which service connection is sought at any time during the pendency of the claim, even if the disability subsequently resolves during the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Evidence of a recent diagnosis predating the filing of a claim may be considered in establishing a current disability for service connection purposes. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).

"[P]ain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In this regard, the Federal Circuit stated that "'disability' in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity" and that "pain in the absence of a presently-diagnosed condition can cause functional impairment." It was additionally stated that "to establish a disability, the appellant's pain must amount to a functional impairment. Thus, to establish the presence of a disability, an appellant will need to show that her pain reaches the level of a functional impairment of earning capacity."

Legal Analysis

The appellant's service treatment records (STRs) do not contain complaints, treatment, or diagnoses related to either ankle. His September 1998 Report of Medical Examination (RME) for separation was normal, and he answered no to bone, joint, or other deformity and foot trouble on his September 1998 Report of Medical History (RMH). While he answered yes to swollen or painful joints, this was in reference to his left knee ACL. See RMH, September 14, 199
establish a disability, the appellant's pain must amount to a functional impairment. Thus, to establish the presence of a disability, an appellant will need to show that her pain reaches the level of a functional impairment of earning capacity."

Legal Analysis

The appellant's August 2020 VA treatment record shows a complaint of worsening ankle pain over the last two years.

The appellant did not provide testimony regarding his bilateral ankle disabilities at his October 2024 Board Hearing.

The May 2021 rating decision on appeal favorably found the appellant sought treatment for bilateral ankle pain, with no diagnosis provided. In the absence of clear and unmistakable evidence to the contrary, the Board is bound by these favorable finding. See 38 C.F.R. §§ 3.104(c), 20.801(a).

The appellant's claim for service-connection for bilateral ankle disabilities is not warranted.

First, there is no evidence of current ankle disabilities. The record contains a single complaint of worsening ankle pain with no diagnosis. While pain without a diagnosis may qualify as a disability, such pain must reach the level of functional impairment of earning capacity. See Saunders, supra. There is no evidence that his ankle pain resulted in any functional impairment. Therefore, evidence of record does not show the appellant had an ankle disability during the pendency of the claim or recent to filing of the claim as is required for service connection purposes. Romanowsky, supra; McClain, supra.

Moreover, the appellant does not have a diagnosis of arthritis related to his ankles which may be service connected on a presumptive basis. Additionally, there is no evidence of in-service complaints, treatment, or diagnoses regarding his ankles, and no evidence of ankle pain since service until August 2020 at the earliest, over 20 years post service.

As the evidence does not show that the appellant's bilateral ankle pain amounts to a disability, there is no evidence of an in-service event, injury, or disease, and there is no indication the bilateral ankle pain is related to service, there was no duty to assist error in not further developing the appellant's claim or providing a medical examination. See 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4)(requiring VA to provide a medical examination or obtain a medical opinion when necessary to make a decision on a claim); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (requiring VA to provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file to make a decision on the claim).

Similarly, the appellant's HLR Informal Conference asserts the appellant's ankles are due to his service-connected left knee which has caused an altered gait that caused his ankle condition. However, his argument is directly contradicted by his private treatment records containing seven notes of a normal gait and a single note of a nonantalgic gait in April 2021. See private treatment records, October 28, 2020, through June 30, 2021. Moreover, there is no evidence of record indicating an association between the appellant's left knee and his single note of an antalgic gait or his ankle pain. Therefore, an examination and medical opinion regarding secondary service connection was also not required as part of this claim. See 38 C.F.R. § 20.802 (providing for remands due to duty to assist errors).

As the persuasive weight of the evidence establishes that the appellant does not have bilateral ankle disabilities which are due to service or a service connected disability, his claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

REASONS FOR REMAND

Under
algic gait or his ankle pain. Therefore, an examination and medical opinion regarding secondary service connection was also not required as part of this claim. See 38 C.F.R. § 20.802 (providing for remands due to duty to assist errors).

REASONS FOR REMAND

Under the Appeals Modernization Act (AMA), VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A(e); 38 C.F.R. § 3.159(c).

Given the limitations of when the duty to assist applies, remand by the Board in the AMA is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors); and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

While additional delay is regrettable, remand is necessary in order to correct a pre-decisional duty to assist errors discussed below.

Entitlement to service connection for a left hip disability is remanded.

VA has a duty to assist veterans and must provide a medical examination or obtain a medical opinion when necessary to make a decision on a claim. § 5103A(d)(1); § 3.159(c)(4). Failure to provide an adequate opinion is a duty to assist error, and, unless the issue can be granted in full, the issue shall be remanded to the AOJ for correction of the error. 38 U.S.C. § 5013A(f); 38 C.F.R. § 20.802(a).

The appellant's VA treatment records show complaints of bilateral hip pain and a diagnosis of bilateral hip impingement and a statement his hip problems are "probably related to referred pain from the knees". See VA treatment records, August 7, 2020, and September 8, 2020.

Therefore, pursuant to Spicer and McLendon, the appellant has a diagnosed left hip disability and an indication that the disability is related to his service-connected left knee disability. However, there is insufficient evidence in the record on which to make a claim; thus, the claim is remanded for a medical examination and opinion.

The matters are REMANDED for the following action:

1. Obtain a VA examination and medical opinion from an appropriate clinician to determine the nature and etiology of the appellant's left hip disability. The clinician must review the claims file and a complete copy of this remand in conjunction with rendering any opinion. This review should be noted in the examination report. The clinician is asked to address the following:

a. Provide all left hip diagnoses, during or recent to the filing of the claim.

b. State whether, but for the appellant's service-connected left knee disability, he would not have a current left hip disability.

b. State whether the appellant's left hip disability would be less severe and result in less functional impairment but for the appellant's service-connected left knee disability.

If the clinician opines that the left hip disability would result in less functional impairment but for the service-connected left knee disability, the clinician must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the primary service-connected disability.

In providing the requested opinion, the clinician must consider the appellant's lay statements as to the onset of his left hip disability. The Board does not make any determination as to the credibility of these lay statements at this time.

The clinician is reminded that a lack of documented treatment alone is not a sufficient basis for a negative opinion. Reliance on the absence of documented treatment alone will result in an inadequate opinion.

In providing the requested opinions, the clinician must provide a rationale to support the opinions.

2. Thereafter, readjudicate the claim.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Wayne, 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

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