Case A26034671

R. JANOFSKY · 2026 · Case ID: A26034671

MIXED

Summary

The veteran, who served from July 2008 to July 2018, appeals the denial of service connection for migraine headaches and seeks an increased rating for his service-connected left knee strain. The Board granted service connection for migraine headaches, finding that the evidence was in approximate balance and afforded the veteran the benefit of the doubt. The Board noted the veteran's contemporaneous reports of headaches during service in May 2018, her claim filed less than two years later stating onset during service, and her consistent testimony and lay reports of migraine symptoms continuing since service. The Board found the negative VA nexus opinion unpersuasive due to its failure to consider the in-service headache complaints. The Board denied an increased rating for left knee strain, finding the evidence did not support the required limitation of flexion to 30 degrees for a higher rating. However, the Board granted a separate 10 percent rating for left knee instability under the pre-February 2021 criteria, finding the veteran's lay statements regarding feelings of instability and occasional brace use to be competent and credible, placing the evidence in approximate balance for slight instability. The Board considered other diagnostic codes for knee conditions but found them inapplicable. The issue of an increased rating for GERD was dismissed as withdrawn by the veteran.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201216-126899

Full Decision Text

Citation Nr: A26034671
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 201216-126899
DATE: April 14, 2026

ORDER

Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is dismissed.

Entitlement to service connection for migraine headaches is granted.

Entitlement to a disability rating in excess of 10 percent for left knee strain (limitation of flexion) is denied.

Entitlement to a separate, compensable rating of 10 percent, but no higher, for left knee instability is granted, subject to the laws and regulations governing the award of monetary benefits.

FINDINGS OF FACT

1. During the July 2024 Board hearing and in subsequent, July 2024 correspondence, prior to promulgation of a decision in the appeal, the Veteran withdrew the appealed issue of entitlement to a disability rating in excess of 10 percent for GERD.

2. The evidence is at least in approximate balance that the Veteran's current migraine headaches disorder was incurred in and is etiologically related to active service based on continuity of symptomatology.

3. During the appeal period, the Veteran's service-connected left knee disability primarily manifested as symptoms and impairments such as: limitation of flexion to 110 degrees, at worst (with painful motion); limitation of extension to 0 degrees, at worst (with painful motion); reported feelings of pain, crackling, and locking; and difficulty with tasks such as climbing stairs, squatting, and bending; however, there is no competent evidence of any form of ankylosis (or its functional equivalent), a semilunar cartilage condition, a current tibia or fibula impairment, or genu recurvatum.

4. The evidence is at least in approximate balance that the Veteran's service-connected left knee disability manifested as competently and credibly described feelings of instability and giving way, for which the Veteran occasionally used a non-prescribed brace; however, such left knee instability was no worse than slight.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appealed issue of entitlement to a disability rating in excess of 10 percent for GERD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for entitlement to service connection for a migraine headaches disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to a disability rating in excess of 10 percent for left knee strain (limitation of flexion) have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260.

4. The criteria for entitlement to a separate, compensable rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 4.1, 4.3, 44.71a, DC 5257 (pre-February 2021 amendments).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Veteran served on active duty from July 2008 to July 2018.

In a December 2019 rating decision, a U.S. Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ) granted service connection for GERD and left knee strain, assigning initial 10 percent ratings for each disability. In an October 2020 rating decision, the AOJ denied service connection for migraine headaches.

In December 2020, the Veteran appealed those AOJ decisions to the Board of Veterans' Appeals (Board) by timely filing VA Forms 10182 (Notices of Disagreement). In both December 2020 Notices of Disagreement, the Veteran elected the Hearing docket. A Board hearing was held in July 2024 and a transcript is associated with the claims file.

Therefore, the Board may consider only the evidence of record at the time of the respective AOJ decisions on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the
, the Veteran appealed those AOJ decisions to the Board of Veterans' Appeals (Board) by timely filing VA Forms 10182 (Notices of Disagreement). In both December 2020 Notices of Disagreement, the Veteran elected the Hearing docket. A Board hearing was held in July 2024 and a transcript is associated with the claims file.

Therefore, the Board may consider only the evidence of record at the time of the respective AOJ decisions on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board has thoroughly reviewed the evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims, and the Board's reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The appellant must not assume that the Board has overlooked evidence not explicitly discussed in this decision.

1. Entitlement to a disability rating in excess of 10 percent for GERD is dismissed.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205.

Withdrawal may be made by the appellant or by the authorized representative. 38 C.F.R. § 20.205. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011).

Here, during the July 2024 Board hearing and in subsequent July 2024 correspondence, the Veteran explicitly and unambiguously withdrew the appealed issue of entitlement to a disability rating in excess of 10 percent for GERD. As there remain no allegations of error of fact or law for appellate consideration as to this issue, it is dismissed.

2. Entitlement to service connection for migraine headaches is granted.

The Veteran claims entitlement to service connection for a migraine headaches disorder. She contends in part that this condition began during and has continued since active service.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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 disease or injury incurred or aggravated during service - the "nexus" requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

The second and third elements of a service connection claim may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system (e.g., migraines). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).

Here, in the October 2020 rating decision, the AOJ found that the Veteran has a current migraine headaches disability. The AOJ also noted the Veteran's complaint of headaches in May 2018 service treatment records (STRs). The Board is bound by these prior favorable findings (which were not clearly and unmistakably erroneous). See 38 C.F.R. § 3.104(c). Accordingly, this appeal mainly hinges on whether the Veteran's current migraines disorder is etiologically related to symptoms the Veteran reported during service.

A May 2018 separation report of medical history showed the Veteran's endorsement of frequent or severe headaches. Similarly, a May 2018 report of medical assessment showed the Veteran endorsed migraines while on active duty for which she did not seek medical care. In the same form, she checked both "yes" and "uncertain" regarding whether she intended to seek VA disability benefits.

In April 2020, less than two years after service separation, the Veteran filed a service connection claim for migraines (in pertinent part). In the claim application form, she reported that this condition began during service.

During an October 2020 VA examination, the Veteran reported that her migraines condition began during service and had gotten worse since then.

In October 2024, the Veteran submitted a private medical report based on a review of pertinent records. The private physician noted evidence showing the Veteran's reports of migraine headache symptoms since service. However, the private physician's opinion focused on whether the Veteran's migraine headaches are secondary to her service-connected psychiatric disability.

During the July 2024 Board hearing, the Veteran testified that her migraine symptoms began during and have continued since service.

After a full review of the evidence of record summarized above, the claim is granted. The evidence is at least in approximate balance that the Veteran's current migraine headaches disability is etiologically related to active service based on competent, credible, and persuasive evidence of continuity of symptomatology. See 38 C.F.R. § 3.303(b).

The Board affords great probative weight to the Veteran's competent, credible, and persuasive lay reports of continuity of migraine symptoms, including headaches, during and since active service. She contemporaneously reported migraine headache symptoms during service in May 2018, soon before separation. She then continued to report similar symptoms soon thereafter in the April 2020 VA disability benefits claim application, which she filed less than two years after separation. Her later reports
claim is granted. The evidence is at least in approximate balance that the Veteran's current migraine headaches disability is etiologically related to active service based on competent, credible, and persuasive evidence of continuity of symptomatology. See 38 C.F.R. § 3.303(b).

The Board affords great probative weight to the Veteran's competent, credible, and persuasive lay reports of continuity of migraine symptoms, including headaches, during and since active service. She contemporaneously reported migraine headache symptoms during service in May 2018, soon before separation. She then continued to report similar symptoms soon thereafter in the April 2020 VA disability benefits claim application, which she filed less than two years after separation. Her later reports and testimony describing migraine symptoms, starting during and continuing since active service, are generally consistent.

In contrast, the Board affords no probative weight to the negative October 2020 nexus opinion, which was based on an inaccurate factual premise and an incomplete review of the relevant evidence of record. The opinion's rationale stated, "there is no....evidence that onset was while in service," and focused on the purported "lack of evidence in service treatment records." The opinion also included an evidence summary, which referenced some STRs. However, both the opinion itself and the accompanying evidence summary failed to consider the May 2018 STRs showing the Veteran's contemporaneously reported, in-service complaints of migraine symptoms (as summarized above).

In conclusion, the evidence is at least in approximate balance that the Veteran's current migraine headaches disability was incurred in and is etiologically related to active service based on continuity of symptomatology. See 38 C.F.R. § 3.303(b). Therefore, affording the benefit of the doubt to the Veteran, entitlement to service connection for a migraine headaches disability is granted. See 38 C.F.R. § 3.102.

3. Entitlement to a disability rating in excess of 10 percent for left knee strain (limitation of flexion) is denied.

In the December 2019 rating decision on appeal, the AOJ assigned an initial, 10 percent evaluation for the Veteran's service-connected left knee disability under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260 (limitation of flexion) based on painful motion, 38 C.F.R. § 4.59. She seeks a higher rating.

To warrant a higher, 20 percent rating for the knee under DC 5260, the evidence must show limitation of flexion to 30 degrees. 38 C.F.R. § 4.71a, DC 5260.

To warrant a 10 percent rating under DC 5261 (limitation of extension), the evidence must show extension limited to 10 degrees. Id., DC 5261. To warrant a higher, 20 percent rating under DC 5261, the evidence must show extension limited to 15 degrees. Id.

To warrant the minimum compensable rating of 30 percent under DC 5256 (ankylosis of the knee), the evidence must show knee ankylosis, with a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Id., DC 5256. "Ankylosis is a medical term meaning '[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure.' DORLAND'S at 94; see Steadman's Medical Dictionary 95 (28th ed. 2006) ('Stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.'); Churchill's Illustrated Medical Dictionary 91 (1989) ('A stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention.')." Chavis v. McDonough, 34 Vet. App. 1, 8 (2021).

Normal knee range of motion is 140 degrees of flexion and zero degrees of extension. See id., Plate II.

When rating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

See id., Plate II.

Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

Separate compensable disability ratings may be assigned if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

Other DCs potentially applicable to service-connected knee disabilities include DC 5258 (Cartilage, semilunar, dislocated), DC 5259 (Cartilage, semilunar, removal of, symptomatic), DC 5262 (Tibia and fibula, impairment of), and DC 5263 (Genu recurvatum).

During the pendency of the appeal, the criteria for rating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised certain DCs, including DCs 5003 (degenerative arthritis), 5257 (knee, other impairment of, recurrent subluxation or instability) and 5262 (tibia and fibula, impairment of).

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. See 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, to the extent that these regulatory changes impacted DCs relevant to the knee, the Board will consider the Veteran's appeal under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021.

In this case, the Veteran had a VA knee examination in October 2019. The examiner diagnosed left knee strain. The Veteran reported current symptoms of pain and the inability to bend down, run, or walk for a long time. She reported the occasional use of a left knee brace. The Veteran reported flare-ups once a week, which she described as difficulty carrying heavy weights and the inability to run and squat. On examination of initial range of motion, left knee flexion was limited to 110 degrees with pain noted on examination. There was evidence of left knee pain with weight-bearing. The Veteran was unable to perform repetitive-use testing due to pain and discomfort.

The October 2019 VA examiner found that although the Veteran was not examined immediately after repetitive use over time, the examination was medically consistent with the Veteran's statements
strain. The Veteran reported current symptoms of pain and the inability to bend down, run, or walk for a long time. She reported the occasional use of a left knee brace. The Veteran reported flare-ups once a week, which she described as difficulty carrying heavy weights and the inability to run and squat. On examination of initial range of motion, left knee flexion was limited to 110 degrees with pain noted on examination. There was evidence of left knee pain with weight-bearing. The Veteran was unable to perform repetitive-use testing due to pain and discomfort.

The October 2019 VA examiner found that although the Veteran was not examined immediately after repetitive use over time, the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner found pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. The examiner was unable to describe this in terms of range of motion because although the Veteran experiences increased symptomatology (pain, fatigue, weakness, lack of endurance, and incoordination) with repeated use over time, there was no additional loss of range of motion anticipated.

The October 2019 VA examiner found that although the examination was not conducted during a flare-up, the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner found that pain, fatigue, weakness, lack of endurance, and incoordination cause this functional loss, which the examiner was unable to describe in terms of range of motion because although the Veteran experiences increased symptomatology (pain, fatigue, weakness, lack of endurance, and incoordination) with flare-ups, there is no additional loss of range of motion anticipated.

Left knee muscle strength testing was normal (5/5) with flexion and extension. The examiner found no left knee ankylosis. The examiner found there was no objective evidence of left knee pain on non-weight bearing and that left knee passive range of motion was the same as active range of motion. The examiner also found that the plane of range of motion involved in objective evidence of pain present on passive range of motion was the same as active range of motion.

In August 2024 (during the post-Board hearing evidence window), the Veteran submitted VA treatment records, including a November 2022 VA new patient note. The clinician generally noted the Veteran's history of limited flexion of the knee. The review of musculoskeletal symptoms noted no muscle weakness, pain, joint stiffness, range of motion limitations, redness, or edema. On musculoskeletal examination, the clinician noted strength equal 5/5 bilaterally, range of motion intact, and no atrophy, instability, or edema of the joints.

During the July 2024 Board hearing, the Veteran reported left knee pain "[m]ostly just when I move around." She described feelings of "crackling" and "popping" in the left knee. She reported left knee flareups three or four days per week when moving a lot while working. She described such flareups as including left knee symptoms of sharp pain and swelling. She reported difficulty with tasks such as going up stairs, bending, squatting, and episodes of "[l]ocking up not too often."

The Board finds that the Veteran's service-connected left knee disability does not meet or more nearly approximate criteria for a higher, 20 percent rating based on limitation of flexion because there is no competent evidence during the period on appeal of flexion limited to 30 degrees. At worst, left knee flexion was limited to 110 degrees. See October 2019 VA knee examination.

The Board acknowledges the Veteran's contention that her left knee disability is more severe than reflected by the current, 10 percent rating under DC 5260. The evidence shows left knee symptoms and impairments during the appeal period such as flexion limited to 110 degrees (at worst), painful flexion, and difficulty with tasks such as squatting, running, bending, carrying weights, and going up stairs. See October 2019 VA examination; see also July 2024 hearing testimony. The Board finds that even considering such symptoms and functional impairments, the weight of the evidence does not show that the Veteran's service-connected left knee disability manifested as or more nearly approximated flexion limited to 30 degrees, as required for a higher, 20 percent rating under DC 5260.

In sum, entitlement to a disability rating in excess of 10 percent for left knee strain under DC 5260 (limitation of flexion) is denied. Since the evidence on this point is not at least in approximate balance, the benefit of the doubt rule does not apply.

The Board has considered the possible application of other
going up stairs. See October 2019 VA examination; see also July 2024 hearing testimony. The Board finds that even considering such symptoms and functional impairments, the weight of the evidence does not show that the Veteran's service-connected left knee disability manifested as or more nearly approximated flexion limited to 30 degrees, as required for a higher, 20 percent rating under DC 5260.

The Board has considered the possible application of other DCs for service-connected knee disabilities. However, for the reasons discussed below, neither higher nor separate compensable ratings are warranted for the Veteran's service-connected left knee disability under other DCs (besides DC 5257, as discussed further in the next section).

The Board finds that the weight of the evidence does not warrant a higher or separate compensable rating under DC 5261 for left knee limitation of extension. The Board considered the Veteran's competent and credibly reported feelings of pain, as well as the October 2019 VA examiner's observation of pain upon extension. However, the Veteran's left knee extension during the October 2019 VA examination was to zero degrees (normal), even considering painful motion. Moreover, the Veteran's left knee range of motion as measured in the November 2022 VA clinical note was normal. Thus, neither a higher nor a separate compensable rating under DC 5261 is warranted here.

Furthermore, the Board finds that a higher or separate compensable rating is unwarranted for left knee ankylosis under DC 5256. The October 2019 VA examiner competently found no ankylosis. The examiner also noted the Veteran's descriptions of her left knee functional impairments, including that she could not squat, run, bend, or carry heavy weight due to the left knee disability. However, even considering such functional impairments, her left knee's range of motion (0 degrees of extension to 110 degrees of flexion, with painful motion in both planes) did not show or more nearly approximate any form of ankylosis or its functional equivalent. Similarly, a November 2022 VA treatment record noted no joint stiffness and normal range of motion. In sum, the weight of the evidence does not show that the Veteran's service-connected left knee disability manifested as or more nearly approximated any form of ankylosis or its functional equivalent. See Chavis, 34 Vet. App. at 11.

Neither the old version (pre-February 2021) nor the new version (post-February 2021) of DC 5262 applies here. The old version does not apply because there is no evidence of nonunion or malunion of the left tibia and fibula. The new version does not apply for the same reason, and because there is no competent evidence of MTSS, or shin splints, during the relevant appeal period.

DCs 5258 and 5259 do not apply here because there is no evidence of either a dislocated left knee semilunar cartilage or removal of the left knee semilunar cartilage. Nor does DC 5263 apply because there is no evidence of genu recurvatum.

In summary, neither higher nor separate compensable ratings are warranted for the Veteran's service-connected left knee disability under the other DCs generally applicable to service-connected knee disabilities at any time during the appeal period (besides DC 5257, as discussed further in the next section). The benefit of the doubt rule does not apply because the evidence on this point is not at least in approximate balance.

4. Entitlement to a separate, compensable rating of 10 percent, but no higher, for left knee instability is granted.

Initially, the Veteran does not appear to contend and the evidence does not show that she had left knee subluxation at any relevant time during the appeal period. Rather, she primarily described feelings of left knee instability and giving way. See July 2024 Board hearing testimony.

During the pendency of the appeal, the criteria for rating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Thus, the Board will consider the old version of 5257 for the portion of the appeal period prior to February 7, 2021, and both the old and new version of DC 5257 for the portion of the appeal period from February 7, 2021
. Rather, she primarily described feelings of left knee instability and giving way. See July 2024 Board hearing testimony.

During the pendency of the appeal, the criteria for rating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Thus, the Board will consider the old version of 5257 for the portion of the appeal period prior to February 7, 2021, and both the old and new version of DC 5257 for the portion of the appeal period from February 7, 2021 (and apply the more favorable criteria). See Kuzma, supra.

Under the old (pre-February 2021) version of DC 5257, the evidence must show recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. A 10 percent rating is assigned for slight symptoms, a 20 percent rating is assigned for moderate symptoms, and a 30 percent rating is assigned for severe symptoms. Id. Terms such as slight, moderate, severe are not expressly defined in the rating criteria. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount, "moderate" means limited in scope or effect, and "severe" means very painful or harmful or of a great degree. Since objective medical evidence is not required to establish lateral knee instability under the pre-February 2021 version of DC 5257, objective medical evidence cannot be categorically found more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

The new version of DC 5257 contains two sections for rating other impairment of the knee. See 38 C.F.R. § 4.71a, DC 5257 (as amended by 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The first section pertains to recurrent subluxation or instability, and the second section pertains to patellar instability, as discussed in detail below. Id.

Regarding recurrent subluxation and instability, a 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. Id. A 20 percent rating is assigned 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 for ambulation, or; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. Id. A 30 percent rating is assigned for an unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id.

Regarding patellar instability, 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 warrants a 10 percent rating. Id. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. Id. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. Id.

"For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon." Id., DC 5257 Note (1) (as amended by 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020)). "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)." Id., Note
or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. Id.

Here, the October 2019 VA knee examination report noted a diagnosis of left knee strain; the examiner did not check the box to indicate a diagnosis of left knee instability. The examiner further found that there was no history of left knee recurrent subluxation or lateral instability. The examiner indicated that left knee joint stability testing was not performed because it was not indicated, as the knees were not unstable. The examiner noted the Veteran's lay description of her left knee symptoms and impairments, which notably did not include reported feelings of instability, "giving way," buckling, or similar issues. The examiner also noted the Veteran's "occasional" use of a brace for left knee strain.

VA clinical notes from November 2022 (refiled in August 2024) reflected no left knee instability.

In August 2024 (during the post-Board hearing evidence window), the Veteran submitted VA treatment records, including a November 2022 new patient note. The VA treating clinician generally noted the Veteran's history of limited flexion of the knee. The review of musculoskeletal symptoms noted no muscle weakness, pain, joint stiffness, range of motion limitations, redness, or edema. On musculoskeletal examination, the clinician noted no instability of the joints.

During her July 2024 Board hearing testimony, the Veteran described her left knee symptoms and impairments, including feelings of giving out or stumbling "[a] few times...[e]specially getting out of bed." The Veteran also testified that she used a knee brace "[t]hree or four times a week or as needed. Mostly when I'm working." She indicated that the brace, which she had bought, was not prescribed.

After a full review of the evidence (summarized above), the Board finds that entitlement to a separate, compensable rating of 10 percent, but no higher, is warranted for the Veteran's reported feelings of left knee instability that were no worse than slight under the old, pre-February 2021 version of DC 5257. The Board has no reason to doubt the credibility of the lay evidence describing feelings of left knee instability, including her July 2024 Board hearing testimony and her reported occasional use of a brace during the October 2019 VA examination. Since the Veteran's lay statements on this point are both competent and credible, the Board finds them probative. See English, 30 Vet. App. at 353. Therefore, the Board finds that the evidence is at least in approximate balance that the Veteran's left knee disability more nearly approximated slight instability under the pre-February 2021 version of DC 5257.

However, the evidence does not support a higher, 20 percent rating for moderate left knee instability under the old (pre-February 2021) version of DC 5257. During the October 2019 VA examination, the Veteran reported only occasional use of a knee brace. Also, there is no clinical evidence of left knee instability that was worse than slight at any relevant time during the appeal period. To the contrary, the November 2022 VA treatment record noted no joint instability (let alone a more severe degree of left knee instability).

Nor does the evidence support a higher, 20 percent rating under the new (post-February 2021) version of DC 5257 during any portion of the appeal period after February 7, 2021 for the following reasons. First, there is no competent evidence during this period showing left knee patellar instability with "[a] diagnosed condition involving the patellofemoral complex," as that term is specifically defined in Note (1).

Second, even assuming for the sake of argument that the evidence during the portion of the appeal period from February 7, 2021 showed or more nearly approximated recurrent left knee instability, there is no competent evidence during that period that showed or more nearly approximated: "(a) [s]prain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes
5257 during any portion of the appeal period after February 7, 2021 for the following reasons. First, there is no competent evidence during this period showing left knee patellar instability with "[a] diagnosed condition involving the patellofemoral complex," as that term is specifically defined in Note (1).

Second, even assuming for the sake of argument that the evidence during the portion of the appeal period from February 7, 2021 showed or more nearly approximated recurrent left knee instability, there is no competent evidence during that period that showed or more nearly approximated: "(a) [s]prain, 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) [u]nrepaired 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." Therefore, the evidence does not warrant a higher, 20 percent rating under the new (post-February 2021) version of DC 5257 for recurrent subluxation or instability for any portion of the appeal period from February 7, 2021. See 38 C.F.R. § 4.71a, DC 5257 (emphasis added).

In summary, the evidence is at least in approximate balance that entitlement to a separate, compensable 10 percent rating, but no higher, for slight left knee instability is warranted under the pre-February 2021 version of DC 5257, which is most favorable here. However, the evidence does not show or more nearly approximate moderate left knee instability at any relevant time during the appeal period under the old (pre-February 2021) version of DC 5257. Nor does the evidence show or more nearly approximate the criteria for a higher, 20 percent rating under the new (post-February 2021) version of DC 5257 for any portion of the appeal period from February 7, 2021.

In conclusion, affording the benefit of the doubt to the Veteran, entitlement to a separate, compensable disability rating of 10 percent, but no higher, for slight left knee instability is granted, subject to the laws and regulations governing the award of monetary benefits. 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5257 (pre-February 2021 amendment).

R. JANOFSKY

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Stratton, C.

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

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