KNEE IMPAIRMENT OF

L.M. YASUI · 2026 · Case ID: A26029634

DENIED

Summary

The veteran, who served in the Army from September 1970 to December 1970, appeals the denial of service connection for a left elbow disability and onychomycosis, as well as increased ratings for his service-connected right knee instability, limitation of flexion of the right knee, and impairment of the right tibia. The Board first addressed the right knee instability claim, noting its procedural history and dismissal from the AMA docket due to its pendency in the Legacy system. The Board found the claim improperly docketed in the AMA system and dismissed it, clarifying it remains active in the Legacy system. For the left elbow disability, the Board found no in-service complaints or diagnoses and noted the Veteran's reported onset of symptoms 40 years after service. The VA examiner provided a negative nexus opinion, finding a post-service event more likely. The Board found this opinion persuasive and outweighed the Veteran's lay opinion, denying service connection. Similarly, for onychomycosis, the Board found no in-service complaints or diagnoses and noted the Veteran's reported onset of symptoms seven to eight years prior to the July 2023 VA examination. The VA examiner provided a negative nexus opinion, finding a post-service event more likely. The Board found this opinion persuasive, denying service connection. Regarding increased ratings for the right knee, the Board reviewed multiple VA examinations and a private examination. Despite the Veteran's reported pain and functional limitations, the Board found the objective evidence, including the VA examinations, did not support ratings higher than those already granted. The Board noted the absence of required prescriptions for assistive devices and the inconsistency in the private examination's findings. The Board concluded that the existing ratings adequately compensated for the Veteran's functional loss due to pain and limitations, and denied the claims for increased ratings.

Rationale

Claim improperly docketed in AMA system; Issue remains active in Legacy system

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

240112-409325

Full Decision Text

Citation Nr: A26029634
Decision Date: 04/01/26 Archive Date: 04/01/26

DOCKET NO. 240112-409325
DATE: April 1, 2026

ORDER

Entitlement to an increased rating in excess of 10 percent for right knee instability is dismissed.

Entitlement to service connection for a left elbow disability is denied.

Entitlement to service connection for onychomycosis is denied.

Entitlement to an increased rating in excess of 20 percent for limitation of flexion of the right knee is denied.

Entitlement to an increased rating in excess of 30 percent for impairment of the right tibia is denied.

FINDINGS OF FACT

1. An April 2025 Board decision under the Legacy system decided the matter of entitlement to increased rating in excess of 10 percent for right knee instability for the entire period on appeal.

2. In December 2025, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand and remanded the matter for readjudication in accordance with the motion, and the appeal of entitlement to increased rating in excess of 10 percent for right knee instability remains in the Legacy system for the entire period on appeal.

3. The competent and probative evidence does not show that the current left elbow and onychomycosis disabilities began during active service or are otherwise related to an in-service injury or disease.

4. For the entire period on appeal, the Veteran's right knee disability is manifested by pain and limited motion with flexion to, at worst, 80 degrees, and extension limited to 5 degrees.

5. For the entire period on appeal, the Veteran's right knee disability does not more nearly approximate nonunion with loose motion, requiring brace.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the AMA appeal for entitlement to an increased rating in excess of 10 percent for right knee instability are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for entitlement to service connection for a left elbow disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for entitlement to service connection for onychomycosis are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for a rating in excess of 20 percent for limitation of flexion of the right knee are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260.

5. The criteria for a rating in excess of 30 percent for impairment of the right tibia are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5262.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1970 to December 1970, with additional periods of Reserve and ROTC service. The Board notes that in a decision issued in June 2020, the Board provided an extensive analysis regarding the Veteran's qualifying active service dates, which was reviewed and affirmed by the Court in a May 2021 Memorandum Decision. Briefly, the Board concluded that the Veteran was credited with approximately five months of active-duty service, including his participation in ROTC summer camp from July to August 1960, which constitutes active duty for training (ACDUTRA), and his active-duty service in the Army from September 1970 to December 1970.

This matter is before the Board on appeal from two rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). First, a December 2023 rating decision addressed the issues of increased ratings for the service-connected right knee disability. In the January 2024 VA Form 10182, the Veteran listed impairment, limitation of flexion, and instability of the right knee as issues that he would like to appeal to the Board and identified the December 2023 rating decision. Second, a December 2023 rating decision addressed the issues of service connection for onychomycosis, renal cyst
duty for training (ACDUTRA), and his active-duty service in the Army from September 1970 to December 1970.

This matter is before the Board on appeal from two rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). First, a December 2023 rating decision addressed the issues of increased ratings for the service-connected right knee disability. In the January 2024 VA Form 10182, the Veteran listed impairment, limitation of flexion, and instability of the right knee as issues that he would like to appeal to the Board and identified the December 2023 rating decision. Second, a December 2023 rating decision addressed the issues of service connection for onychomycosis, renal cysts, and left elbow and hernia disabilities. In a January 2024 VA Form 10182, the Veteran listed onychomycosis, renal cysts, and left elbow and hernia disabilities as issues that he would like to appeal to the Board and identified the December 2023 rating decision.

The Veteran selected the Direct Review docket without a Board hearing in the AMA review system by submitting VA Forms 10182 (Decision Review Request: Board (Notice of Disagreement)) in January 2024. Based upon the selection of the Direct Review option, concerning the issues of increased ratings for the service-connected right knee disability, the Board may only consider the evidence of record as of December 20, 2023 - the date of the rating decision on appeal. See 38 C.F.R. § 20.301. Regarding the issues of service connection for onychomycosis, renal cysts, and left elbow and hernia disabilities, the Board may only consider the evidence of record as of December 21, 2023 - the date of the rating decision on appeal. Id. If the Veteran submitted evidence that was added to the record after December 20, 2023, for the issue of increased ratings for the service-connected right knee disability, or after December 21, 2023, for the issues of service connection for onychomycosis, renal cysts, and left elbow and hernia disabilities, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

This appeal has a long procedural history and has been before the Board previously. To assist with adjudication, the Board will provide a brief historical summary. Regarding the issues of service connection for onychomycosis, renal cysts, and left elbow and hernia disabilities, in April 2023 and October 2023, the Board remanded these issues on appeal, among others, for the Agency of Original Jurisdiction (AOJ) to afford the Veteran with VA examinations for his claimed disabilities. Turning to the issue of increased ratings for the right knee disability, in June 2020, November 2022, and March 2023, the Board remanded the issue on appeal for further development. Further, in June 2023, the Board dismissed the issue of increased ratings for the right knee disability on appeal from the AMA docket since it remained in the legacy review system. Subsequently, in June 2023, the Board granted increased and separate ratings for the Veteran's right knee disability. The Veteran appealed the June 2023 Board decision to the Court. In February 2024, the Court issued a JMPR. In the JMPR, the parties agreed that remand of the issue of a rating in excess of 10 percent for right knee instability was warranted because the Board did not provide an adequate statement of reasons for its decision. The JMPR did not disturb the June 2023 Board's grant of an initial 20 percent rating for limitation of flexion and a separate 30 percent rating for impairment of the right tibia. The Court granted the JMPR in a February 2024 Order, vacated the part of the March 2021 Board decision that denied entitlement to a rating in excess of 10 percent for right knee instability, and remanded the appeal back to the Board for further consideration.

Moreover, in August 2024, the Board denied the issues of increased ratings for the right knee disability and service connection for onychomycosis and left elbow disabilities on appeal. The Veteran appealed the August 2024 Board decision to the Court. In July 2025, the Court issued a JMPR. In the JMPR, the parties agreed that remand of the issues of increased ratings for the right knee disability and service connection for onychomycosis and left elbow disabilities on appeal because the Board did not provide an adequate statement of reasons for its decision. The Court granted the JMPR in a July 2025 Order, vacated the part of the
and remanded the appeal back to the Board for further consideration.

Moreover, in August 2024, the Board denied the issues of increased ratings for the right knee disability and service connection for onychomycosis and left elbow disabilities on appeal. The Veteran appealed the August 2024 Board decision to the Court. In July 2025, the Court issued a JMPR. In the JMPR, the parties agreed that remand of the issues of increased ratings for the right knee disability and service connection for onychomycosis and left elbow disabilities on appeal because the Board did not provide an adequate statement of reasons for its decision. The Court granted the JMPR in a July 2025 Order, vacated the part of the August 2024 Board decision that denied entitlement to increased ratings in excess of increased ratings for the right knee disability and service connection for onychomycosis and left elbow disabilities on appeal, and remanded the appeal back to the Board for further consideration.

Finally, both the February and December 2023 rating decisions determined that the Veteran was diagnosed with onychomycosis, renal cysts, and umbilical hernia. The Board is bound by the above favorable finding and sees no reason to disturb it. 38 C.F.R. §§ 3.104(c).

1. Entitlement to an increased rating in excess of 10 percent for right knee instability

There are two separate and distinct appeal systems available to veterans to have their claims reviewed by the Board. The Legacy review system is for decisions issued prior to February 19, 2019. Under the Legacy review system, an appeal to the Board is initiated by filing a VA Form 21-0958, Notice of Disagreement (NOD). The modernized review system is for decisions issued after implementation of the Appeals Modernization Act (AMA) on February 19, 2019. Under the modernized review system, an appeal to the Board is initiated by filing a VA Form 10182, Decision Review Request: Board Appeal (NOD). 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.201, 20.202.

VA's regulations prohibit concurrent elections, where the same claim or issue would be pending under both the Legacy and AMA appeals systems. See 38 C.F.R. § 3.2500.

By way of history, in April 2018, the Board granted service connection for a right knee disability and assigned a 10 percent disability rating, effective April 25, 2012, which was implemented in a September 2018 rating decision. In November 2018, the Veteran timely filed a NOD with respect to his initial ratings and the effective date. A subsequent December 2019 rating decision granted an earlier effective date of October 31, 2011. As mentioned above, in June 2020, November 2022, and March 2023, the Board remanded the issue of increased ratings for a right knee disability on appeal for further development. Further, in June 2023, the Board dismissed the issue on appeal from the AMA docket since it remained in the legacy review system. Subsequently, in June 2023, the Board granted increased and separate ratings for the Veteran's right knee disability, to include a separate rating for right knee instability, which were implemented by the July 2023 rating decision.

However, in August 2023, the Veteran submitted a claim for increased ratings for the right knee disability, to include a rating in excess of 10 percent for right knee instability, among others, which were denied by the December 2023 rating decision. The Veteran filed a timely VA Form 10182, noting that he was appealing the December 2023 rating decision that denied increased ratings for his right knee disability, to include a rating in excess of 10 percent for right knee instability. Meanwhile, as mentioned above, in the Legacy review system, the Veteran appealed the June 2023 Board decision to the Court. In February 2024, the Court granted a JMPR to vacate the part of the June 2023 Board decision that denied entitlement to a rating in excess of 10 percent for right knee instability. In an April 2025 decision, the Board denied an increased rating in excess of 10 percent for right knee instability. In December 2025, the Court granted a Joint Motion for Remand and remanded the matter for readjudication in accordance with the motion, and the appeal of entitlement to increased rating in excess of 10 percent for right knee instability remains in the Legacy system for the entire period on appeal. As the same issue on the same factual basis was previously decided by the Board in April 2025, and the matter is remanded by the Court consistent with the December 2025 Joint Motion for Remand, the matter cannot
Board decision that denied entitlement to a rating in excess of 10 percent for right knee instability. In an April 2025 decision, the Board denied an increased rating in excess of 10 percent for right knee instability. In December 2025, the Court granted a Joint Motion for Remand and remanded the matter for readjudication in accordance with the motion, and the appeal of entitlement to increased rating in excess of 10 percent for right knee instability remains in the Legacy system for the entire period on appeal. As the same issue on the same factual basis was previously decided by the Board in April 2025, and the matter is remanded by the Court consistent with the December 2025 Joint Motion for Remand, the matter cannot be readjudicated by the Board in the AMA appeals system.

Although the December 2023 rating decision was issued under the AMA system, and the RO told the Veteran he could seek review of that decision under the AMA system, and that, in January 2024, the Board informed the Veteran that his January 12, 2024, Notice of Disagreement was received and that his appeal was docketed under the appeals system as modernized by the AMA, the regulation clearly prohibits concurrent elections, where the same claim or issue would be pending under both the Legacy and AMA appeals systems. See 38 C.F.R. § 3.2500. Despite these notifications, the Veteran has repeatedly chosen to remain in the Legacy system with respect to the claim for an increased rating in excess of 10 percent for right knee instability as evidenced by the Board's April 2025 adjudication of the same issue (encompassing the entire AMA period on appeal) and the pursuit of an appeal to the Court resulting in Court's December 2025 grant of a Joint Motion for Remand for the increased rating claim in the Legacy system. Indeed, the December 2025 Joint Motion for Remand was granted by the Court after the July 2025 JMPR, further supporting the finding that the Veteran continued to elect the Legacy system and that the appeal remains in the Legacy system.

In short, the Veteran's appeal for a increased rating in excess of 10 percent for right knee instability was improperly docketed in the AMA appeals system because the issue is currently on appeal and remains in the Legacy review system.

Accordingly, the Board finds the claim of a rating in excess of 10 percent for right knee instability was improperly docketed under the AMA, and its dismissal is warranted to cure the procedural defect. See Hall v. McDonough, 34 Vet. App. 329 (2021) (Board cannot dismiss AMA appeal for lack of jurisdiction when claimant appeals legacy case with VA Form 10182 but can consider dismissal for non-jurisdictional reasons). For this reason, the Veteran's claim is dismissed in this AMA appeal. However, to be clear, the Veteran's appeal for an increased rating in excess of 10 percent for right knee instability is still active and pending in the Legacy review system.

Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disability incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009).

The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

2. Service connection for a left elbow
23 Vet. App. 1, 4-6 (2009).

2. Service connection for a left elbow disability.

The Veteran contends service connection for a left elbow disability. Specifically, he reported symptoms, such as limited motion, weakness, and a constant dull ache worsened by physical activity and triggered by pushing and pulling activities. Further, he reported that his symptoms progressed over the years. See 3/17/2022 Correspondence, at page 27; see also 7/24/2023 C&P Examination.

At the outset, the Board notes that the Veteran was diagnosed with bilateral elbow strain. Id. Therefore, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection.

As to the second element of service connection, the Veteran contends that "he messed up his elbows while in the service due to having to army crawl." Id. The Board notes that complaints, diagnoses, or treatment pertaining to a left elbow disability were not documented in service.

Regarding the question whether there is a so-called "nexus" between the Veteran's current left elbow disability and service, a review of the competent lay and medical evidence tends to weigh against a finding that the Veteran's current left elbow disability is related to service.

Turning to the competent and relevant medical evidence, during the July 2023 VA examination, the Veteran was diagnosed with bilateral elbow strain. At the conclusion of the examination, the examiner rendered a negative nexus opinion. As rationale, the examiner stated that "the Veteran [reported] his pain started 10 years ago[,] which would have been 2013, 40 years after his time in the service." Moreover, the examiner stated that "[w]ithout chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology." Id.

The Board finds the July 2023 VA medical examination and opinion to be highly persuasive and worthy of much probative weight regarding the issue of whether the Veteran's current left elbow disability is related to service. The Board finds that the rationale is logically supported, based on familiarity with the Veteran's relevant medical history, such as his in-service and post-service medical treatment and medical history. For these reasons, it deserves great weight. In addition, the Board places probative weight on the July 2023 VA medical opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture, to include consideration of relevant facts. Further, there are no contrary medical opinions of record.

The Board also acknowledges the Veteran's assertions that "he messed up his elbows while in the service due to having to army crawl" and experiences symptoms, such as limited motion, weakness, and a constant dull ache worsened by physical activity. He is certainly competent to report symptoms such as pain. However, he is not competent to attribute his symptoms to service as the record does not reflect that he has medical training and/or experience. Therefore, the Veteran's opinion regarding the etiology of his current left elbow disability is not competent and lacks weight. See Jandreau, 492 F.3d at 1377. The competent medical evidence, such as the July 2023 medical examination and opinion considered this contention, and the Board finds that it heavily outweighs the Veteran's opinion and persuasively shows that the Veteran's current left elbow disability is not due to service. As mentioned above, complaints, diagnoses, or treatment pertaining to a left elbow disability were not documented in service. The medical evidence, to include the July 2023 VA examination report, shows that the Veteran's left elbow disability had its onset in 2013 (as reported by the Veteran), "40 years after his time in the service" and that "[w]ithout chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology." The Board notes that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Fed. R. Evid. 803(4). As
, complaints, diagnoses, or treatment pertaining to a left elbow disability were not documented in service. The medical evidence, to include the July 2023 VA examination report, shows that the Veteran's left elbow disability had its onset in 2013 (as reported by the Veteran), "40 years after his time in the service" and that "[w]ithout chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology." The Board notes that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Fed. R. Evid. 803(4). As discussed above, the Board finds this opinion to be probative of an onset of the left elbow disability years after service and deserving weight as there is a supporting rationale, to include reference to relevant facts in the record.

The Board acknowledges that, in October 2023, the Board remanded for the AOJ to obtain a medical examination and opinion regarding the Veteran's elbow disabilities. However, because that decision considered only the evidence of record at the time of a February 2023 AOJ decision, the Board could not consider the July 2023 examination and opinion and thus did not, implicitly or explicitly, find that examination and opinion inadequate. Here, as discussed in detail above, the Board finds the July 2023 examination and opinion adequate for adjudication.

Meanwhile, no competent medical source has opined that the Veteran's elbow disabilities were incurred in service or are causally related to an in-service event, injury, or disease. The Board acknowledges that, in January 2024, the Veteran was examined regarding his right elbow and reported an onset of symptoms in the mid-1960s because of "wear and tear from the military." Although the Veteran is competent to report the lay-observable symptoms such as pain, he is not competent to establish a nexus between these disabilities and military service. See Jandreau, 492 F.3d at 1376-77. Nor can service connection be granted based on chronicity or continuity of symptomatology, as the Veteran's elbow disabilities are not a chronic disease listed in 38 C.F.R. § 3.309(a). And the time, place, and circumstances of the Veteran's service does not otherwise allow a presumption of service connection based on in-service toxin exposure.

Additionally, the absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous left elbow symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection).

In sum, service connection for a left elbow disability is not warranted. As most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b).

3. Service connection for onychomycosis.

The Veteran contends service connection for onychomycosis. Specifically, he has complained of occasional tenderness to the left big toenail due to thickness. See 11/23/2022 Medical Treatment Record - Non-Government Facility, at page 9.

At the outset, the Board notes that the Veteran was diagnosed with onychomycosis. See 11/23/2022 Medical Treatment Record - Non-Government Facility, at page 9. Therefore, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection.

As to the second element of service connection, the Board notes that complaints, diagnoses, or treatment pertaining an onychomycosis disability were not documented in service.

Regarding the question whether there is a so-called "nexus" between the Veteran's current onychomycosis disability and service, a review of the competent lay and medical evidence tends to weigh against a finding that the Veteran's current onychomycosis disability is related to service.

Turning to the competent and relevant medical evidence, during the July 2023 VA examination, the Veteran was diagnosed with
page 9. Therefore, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection.

As to the second element of service connection, the Board notes that complaints, diagnoses, or treatment pertaining an onychomycosis disability were not documented in service.

Turning to the competent and relevant medical evidence, during the July 2023 VA examination, the Veteran was diagnosed with onychomycosis. At the conclusion of the examination, the examiner rendered a negative nexus opinion. As rationale, the examiner stated that "there is a lack of substantiating evidence supporting a nexus between the current diagnosis of onychomycosis and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology." See 7/24/2023 C&P Examination.

The Board finds the July 2023 VA medical examination and opinion to be highly persuasive and worthy of much probative weight regarding the issue of whether the Veteran's current onychomycosis disability is related to service. The Board finds that the rationale is logically supported, based on familiarity with the Veteran's relevant medical history, such as his in-service and post-service medical treatment and medical history. For these reasons, it deserves great weight. In addition, the Board places probative weight on the July 2023 VA medical opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture, to include consideration of relevant facts. Further, there are no contrary medical opinions of record.

The Board acknowledges that, in October 2023, the Board remanded for the AOJ to obtain a medical examination and opinion regarding the Veteran's onychomycosis. However, because that decision considered only the evidence of record at the time of a February 2023 AOJ decision, the Board could not consider the July 2023 examination and opinion and thus did not, implicitly or explicitly, find that examination and opinion inadequate. Here, as discussed in detail above, the Board finds the July 2023 examination and opinion adequate for adjudication.

The Board also acknowledges the Veteran's contentions experiencing of occasional tenderness to the left big toenail due to thickness. He is certainly competent to report symptoms such as pain. However, he is not competent to attribute his symptoms to service as the record does not reflect that he has medical training and/or experience. Therefore, the Veteran's opinion regarding the etiology of his current onychomycosis disability is not competent and lacks weight. See Jandreau, 492 F.3d at 1377. The competent medical evidence, such as the July 2023 medical examination and opinion considered this contention, and the Board finds that it heavily outweighs the Veteran's opinion and persuasively shows that the Veteran's current onychomycosis disability is not due to service. As mentioned above, complaints, diagnoses, or treatment pertaining to a left elbow disability were not documented in service. The medical evidence, to include the July 2023 VA examination report, shows that the Veteran's onychomycosis disability had its onset "[seven or eight] years ago" (as reported by the Veteran), and that "[w]ithout chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology." As mentioned above, the Board notes that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Fed. R. Evid. 803(4). As discussed above, the Board finds this opinion to be probative of an onset of the onychomycosis disability years after service and deserving weight as there is a supporting rationale why, to include reference to relevant facts in the record.

Additionally, the absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous onychomycosis symptoms after service separation. See Buchanan, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson, 230 F.3d
ycosis disability years after service and deserving weight as there is a supporting rationale why, to include reference to relevant facts in the record.

Additionally, the absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous onychomycosis symptoms after service separation. See Buchanan, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection).

In sum, service connection for onychomycosis is not warranted. As most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b).

4. An increased rating in excess of 20 percent for limitation of flexion of the right knee.

5. An increased rating in excess of 30 percent for impairment of the right tibia.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007).

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.

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 disability is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or
more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71(a) [or 4.73] criteria.").

However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability.

Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021).

Under these criteria, a 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 rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (unrepaired, failed repair, or repaired) causing persistent instability, and a medical provider prescribes a brace and/or assistive device 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 and bracing for ambulation. 38 C.F.R. § 4.71a.

For patellar instability, a 10 percent disability rating is warranted for a diagnosed disability 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 disability rating is warranted for a diagnosed disability 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
paired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. 38 C.F.R. § 4.71a.

For patellar instability, a 10 percent disability rating is warranted for a diagnosed disability 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 disability rating is warranted for a diagnosed disability 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 disability rating is warranted for a diagnosed disability 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.

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).

Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; this warrants a 20 percent rating. Finally, DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating.

Under DC 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71(a), DC 5260.

Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71(a), DC 5261.

A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered.

Under DC 5262, a noncompensable rating is warranted for malunion with treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted for malunion requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted for malunion requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted for malunion requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A maximum 40 percent rating is warranted for nonunion with loose motion, requiring brace.

The Veteran seeks an increased rating in excess of 30 percent for his service-connected impairment of right tibia and in excess of 20 percent for limitation of flexion of the right knee.

In this case, the record shows that the Veteran is currently rated at 30 percent (under DC 5262), effective October 24, 2019, for impairment of the right tibia and at 20 percent (under DC 5010-5260), effective October 31, 2011, for limitation of flexion of the right knee. 38 C.F.R. § 4.71a. The period on appeal is from the Veteran's August 12, 2023, increased rating claim, plus the one-year lookback period.

The question for the Board is whether higher or separate ratings are warranted during the period on appeal.

After careful review of the competent and
of flexion of the right knee.

The question for the Board is whether higher or separate ratings are warranted during the period on appeal.

After careful review of the competent and probative evidence, the Board finds that ratings in excess of 30 percent for impairment of the right tibia and in excess of 20 percent for limitation of flexion are not warranted.

Turning to the relevant and competent medical evidence, during an April 2023 VA examination, the Veteran reported symptoms, such as stiffness, locking, occasional swelling, severe pain, and falling down the stairs. The Veteran reported flare-ups, where he would experience trouble walking, getting down the stairs, and an inability to walk long distances. The objective examination showed that right knee flexion limited to 100 degrees and normal extension. The Veteran also had pain with flexion and extension, and with active, passive, weightbearing, and non-weightbearing motion that resulted in functional loss; an inability to walk, sit, bend, stand, or climb without difficulty. The examiner noted no additional loss of function or range of motion after three repetitions. Additionally, the examiner noted that pain and lack of endurance significantly limited the Veteran's functional ability with repeated use over a period of time; flexion was limited to 80 degrees and normal extension. Further, the examiner noted additional contributing factors to the Veteran's disability, such as interference with sitting and standing, swelling, and disturbance of locomotion; the Veteran reported an inability to sit, bend, stand, or walk without swelling or difficulty. Moreover, the Veteran had tenderness, crepitus, and no patellar instability, subluxation, persistent instability, locking, muscle atrophy, or ankylosis. Also, the examiner did not find any evidence of nonunion of the right knee. The examiner stated that the Veteran used a brace occasionally, and a cane constantly for ambulation; however, there was no record that the Veteran had a prescription for assistive devices. Finally, as functional impact, the examiner opined that the Veteran would experience reduced endurance for prolonged standing, walking, step climbing, or sitting. See 4/9/2023 C&P Examination.

An additional VA examination was afforded in June 2023. The Veteran reported daily severe flare-ups, which affected his ability to sit, squat, walk, bend, and turn around. He also reported symptoms, such as buckling and needing to "lean against stuff" and using a cane "as much as [he] can." The objective examination showed right knee flexion limited to 110 degrees and normal extension. The Veteran also had pain with flexion and extension, and with active, passive, weightbearing, and non-weightbearing motion that did not result in functional loss. The examiner noted no additional loss of function or range of motion after three repetitions. Additionally, the examiner noted that pain significantly limited the Veteran's functional ability with repeated use over time and flare-ups; his flexion was limited to 110 degrees and normal extension. Further, the Veteran had tenderness and crepitus, and no patellar instability, subluxation, persistent instability, locking, muscle atrophy, or ankylosis. Moreover, the examiner did not find any evidence of nonunion of the right knee. The Veteran used a cane constantly for ambulation; however, there was no prescription for an assistive device for ambulation. Finally, as functional impact, the examiner opined that the Veteran would experience partial functional impairment when performing tasks that require prolonged walking, sitting, climbing up and down the stairs, kneeling, squatting, and excessive bending with a bent knee. See 6/9/2023 C&P Examination.

The most recent VA examination was afforded in October 2023. The Veteran reported symptoms, such as difficulty going up and down stairs and an inability to go for a walk or travel, and the need of a cane, knee brace, walker, and stair lift in house to get around. Additionally, he reported he has a limited ability to play with his grandchildren and must have help to do "just about anything in the house." The Veteran reported no flare-ups. The objective examination showed right knee flexion limited to 100 degrees and extension limited to 5 degrees. The Veteran also had pain with flexion and active and passive motion that resulted in functional loss. The examiner noted no additional loss of function or range of motion after three repetitions. Additionally, the examiner noted that pain significantly limited the Veteran's functional ability with repeated use over a period of time; his flexion was limited to 95 degrees, and his extension was limited to 5 degrees. Further, the examiner noted additional contributing factors to the Veteran's disability, such as interference with standing; he reported he cannot stand for more than a few minutes before his knee pain increases, and disturbance of locomotion; the Veteran reported he can walk through his house and must use the handicap cart to grocery shop. Moreover, the Veteran had no tenderness, crepitus, patellar instability, subluxation, persistent instability, locking, muscle atrophy, or ankylosis. Also, the examiner did not find any evidence of nonunion of the right knee. The Veteran used a cane, brace, and walker regularly for ambulation. Finally, the examiner noted no functional impact. See 10/27/2023 C&P Examination.

The Board further acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use," unless such effects are otherwise contemplated in a particular diagnostic code. Ingram v. Collins, 38 Vet. App. 130, 131 (2025).

With regard to Ingram, as mentioned above, the Board notes that the April 2023 VA examiner noted the Veteran's report that he used Diclofenac, turmeric, lidocaine patch and ointment, and Diclofenac gel. Additionally, the June 2023 VA examiner noted the Veteran's report that he used Tramadol, Diclofenac gel, and turmeric. Further, the October 2023 VA examiner noted the Veteran's report that he used Tramadol, Gabapentin, turmeric, lidocaine ointment, Diclofenac gel, Biofreeze, heat, menthol gel, and Amitriptyline for pain. However, there was no indication that the examiners considered the ameliorative effects of medication in rendering the findings in the reports nor did the Veteran indicate he was on any pain medications at the time of the examinations. The examiners considered the Veteran's lay description of functional impairment due to pain and range of motion limitations in all worse-case scenarios. There is no indication that the examiners considered the ameliorative effects of medication and indeed, factored in the Veteran's description of when his pain is at its worst, i.e., discounted such effects. The Board, too, in rendering this decision, resolved all doubt in the Veteran's favor. As such, the Board finds the April 2023, June 2023, and October 2023 VA examinations to be adequate for rating purposes, as they are based on in-person examinations of the Veteran, objective testing, and medical expertise. Ingram v. Collins, 38 Vet. App. 130, 131 (2025).

VA treatment records for the period on appeal showed that the Veteran's right knee pain was stable on Gabapentin medication. Additionally, VA treatment records showed that the Veteran had a fall in September 2023; however, he reported that it was due to dizziness and poor vision. See 12/4/2023 CAPRI, at page 5. Moreover, VA treatment records reference the Veteran's right knee disability but are very general regarding treatment. As such, this evidence does not tend to show a factually ascertainable increase for the Veteran's right knee disability.

Furthermore, in May 2023, the Veteran submitted a March 2023 private examination by Dr. T.M., M.D. The Veteran did not report flare-ups. The objective examination showed right knee flexion limited to 110 degrees and extension limited to 5 degrees. The Veteran also had gait and balance abnormalities and pain with flexion and extension, and with active, passive, weightbearing, and non-weightbearing motion. In addition, Dr. T.M. noted that pain and instability significantly limited the Veteran's functional ability with repeated use over a period of time; flexion was limited to 100 degrees and extension was limited to 15 degrees. Also, Dr. T.M. noted that swelling and joint effusion would cause decreased range of motion. Additionally, the examiner noted additional contributing factors to the Veteran's disability, such as interference with standing, disturbance of locomotion, less movement than normal, swelling, and deformity. Further, the Veteran had tenderness, crepitus, and no muscle atrophy, patellar instability, subluxation, persistent instability, locking, or ankylosis. Moreover, Dr. T.M. did not find any evidence of nonunion of the right knee. Dr. T.M. reported that the Veteran used a cane and brace occasionally for ambulation; however, Dr. T.M. also reported that the Veteran did not require a prescription for any assistive device for ambulation. Finally, as functional impact, Dr. T.M. opined that the Veteran's disability would impact his ability to jump, run, climb, squat, and walk for long periods. See 5/23/2023 Disability Benefits Questionnaire (DBQ) - Veteran Provided.

However, there are instances where an examiner's error renders an opinion totally unreliable, such as when an opinion is based upon an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here, this is such an instance, and the Board does not find Dr. T.M.'s March 2023 private examination report as to the Veteran's service-connected right knee disability adequate. In this regard, although Dr. T.M. reported performing an in-person examination, he also reported that he did not review the Veteran's claims file. Furthermore, private treatment records showed that, in March 2023 (same month as the above-discussed private opinion), the Veteran was treated by Dr. T.M. due to a fall down the stairs. The objective examination showed that the Veteran had an antalgic gait and station; however, he also had normal strength, sensation, and reflexes, and no right laxity, subluxation, or ligamentous instability. Of note, during this examination, Dr. T.M. found that the Veteran's passive right knee flexion was limited to 100 degrees and extension was limited to 5 degrees, which is not consistent with the more limiting range of motion reported in the same month in the above-discussed private opinion. Also, the degree of extension limitation described in the March 2023 private examination is not consistent with the rest of the evidence of record. See 7/5/2023 Medical Treatment Record - Non-Government Facility, at pages 18 and 24. This factor erodes the weight of the opinion.

In addition, in contrast to the VA examinations, Dr. T.M.'s March 2023 private examination report (associated with the record in May 2023) does not indicate that a goniometer was used. VA regulations provide that accurate measurement of the excursion of joints should be insisted on. The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within VA. See 38 C.F.R. § 4.46. The purpose of a goniometer is to assist in more precise measurements of motion. As regulation specifically requires a goniometer be used in the measurements, the Board cannot rely on measurements that were made without use of a goniometer.

After review of the competent and probative evidence, the Board finds that a rating in excess of 30 percent for right tibia and in excess of 20 percent for limitation of flexion are not warranted. Regarding right knee flexion, during the entire period on appeal, the Veteran has had at worst right knee flexion limited to 80 degrees and extension limited to 5 degrees. As mentioned above, a higher 30 percent rating under Diagnostic Code 5260 requires limitation of flexion to 15 degrees. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A compensable rating under Diagnostic Code 5261 requires limitation of extension to 10 degrees
goniometer.

The Board acknowledges the above-mentioned Veteran's contentions that he experiences symptoms, such as difficulty going up and downstairs and an inability to go for a walk or travel, and the need for a cane, knee brace, walker, and stair lift in house to get around. Additionally, he reported he has a limited ability to play with his grandchildren and must have help to do "just about anything in the house." However, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations is more nearly approximated by higher ratings. In this regard, as discussed above, the objective examinations of record showed that the Veteran had normal strength, sensation, and reflexes, and no tenderness, crepitus, patellar instability, subluxation, persistent or ligamentous instability, locking, muscle atrophy, or ankylosis. Further, although the Veteran reported the need for a cane, knee brace, walker, and stair lift in house to get around, the evidence of record during the entire period on appeal, to include VA examinations and the March 2023 private examination, showed that the Veteran did not require a prescription for any assistive device for ambulation. Moreover, the Veteran reported experiencing a limited ability to play with his grandchildren and that he must have help to do "just about anything in the house." However, the objective evidence of record did not show that the Veteran's limitations due to the right knee disability are so severe. In this regard, as mentioned above, the April 2023 VA examiner opined that the Veteran would only experience reduced endurance for prolonged activities. In addition, the June 2023 VA examiner opined that the Veteran would only experience partial functional impairment when performing prolonged activities. Also, Dr. T.M. opined that the Veteran's disability would impact prolonged walking and high impact activities, such as jumping, running, climbing, and squatting. Finally, the October 2023 VA examiner noted no functional impact.

Moreover, considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 30 percent rating for impairment of right tibia and 20 percent rating for limitation of flexion already compensate the Veteran for any functional loss due to pain affecting the right knee. Deluca, 8 Vet. App. at 204-07. The Board finds that the Veteran's pain is contemplated and compensated by the current above-mentioned 30 percent rating for impairment of right tibia and 20 percent rating for limitation of flexion, as under 38 C.F.R. § 4.59 the minimum compensable rating is to be assigned for the presence of pain only if there is no compensable limitation of motion in the joint.

To the extent that the June 2023 VA examination is not fully compliant with Court decisions relating to orthopedic examinations, any errors in this regard are harmless, as the Board has estimated the reduction in range of motion based on flare-ups in a manner favorable to the Veteran as indicated in the discussion above. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016).

Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). VA's General Counsel (GC) has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004 (Sept. 17, 2004). In that opinion, GC explained that 38 C.F.R. § 4.14, "[a]voidance of pyramiding," which provides that evaluation of the "same manifestation" under different diagnoses is to be avoided, did not preclude separate ratings for limitation of flexion and extension of the same knee joint, because such ratings are based on different symptomatology, i.e., a retrograde motion involving bending of the leg (limitation of flexion) and a forward motion to straighten the leg (limitation of extension). See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint).

Here, as noted above, the Veteran has a 20 percent rating for painful flexion under DC 5260. In this regard, the April 2023, June 2023, and October 2023 VA examination reports noted painful flexion and extension. To be able to assign a 10 percent rating for painful extension and avoid pyramiding, the evidence would have to show that the Veteran is entitled to a 10 percent rating for extension due to limitation of motion. In other words, the Veteran's extension would have to be limited to 10 degrees to be entitled to a 10 percent rating under Diagnostic Code 5261. However, as discussed above, the evidence shows that at worst, extension is limited to 5 degrees. As the Veteran's extension is not limited to 10 degrees, a separate rating of 10 percent rating under Diagnostic Code 5261 for painful extension cannot be granted without violating the prohibition against pyramiding. 38 C.F.R. § 4.14.

The Board has considered whether a separate rating under DC 5258 is warranted; however, the April 2023, June 2023, and October 2023 VA examination reports weigh against a separate rating as it affirmatively indicated no history of effusion or frequent episodes of joint locking. Additionally, as the above discussed evidence does not reflect compensable limitation of?extension under DC 5061, even when considering additional functional loss, a separate?rating?for?limitation of extension is not warranted. Finally, ratings under 5256, 5259, and 5263 are also not warranted as the Veteran, per the examination reports discussed above, does not have ankylosis, a history of semilunar cartilage condition, a meniscal condition, or genu recurvatum.

As such, the Board finds that the objective evidence of record persuasively weighs against the claim for a rating in excess of 30 percent for right tibia and in excess of 20 percent for limitation of flexion. As the evidence of record persuasively weighs against a rating in excess of 30 percent for right tibia and in excess of 20 percent for limitation of flexion, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

(Continued on the next page)

As relevant to the discussions above, the Board has directly addressed the arguments made by the parties of the July 2025 JMPR and the Court has provided guidance with regard to joint motions for remand. The Court has an interest in conservation of judicial resources and in avoiding piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ("Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation."), aff'd, 972 F.2d 331 (Fed. Cir. 1992); see also Gen. Elec. Co. v. Int'l Trade Comm'n, 692 F.3d 1218, 1220 (Fed. Cir. 2012) (quoting McLish v. Roff, 141 U.S. 661, 665-66, 12 S.Ct. 118, 35 L.Ed. 893 (1891) ("From the very foundation of our judicial system the object and policy of the acts of congress in relation to appeals and writs of error... have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.")). Thus, if there were any additional errors in the Board's August 2024 decision, the JMPR should have and would have presumably been brought to the Board's attention for the sake of judicial economy. Indeed, the parties of the July 2025 JMPR identified no other deficiencies in the August 2024 Board decision.

L.M. YASUI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.F.

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.

Analyze in VA Law Explorer