CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

ARDIE A. BLAND · 2026 · Case ID: A26035788

MIXED

Summary

The veteran served from September 1969 to April 1972 and again from August 1974 to February 1975. The veteran appealed the denial of service connection for several conditions, including COPD, drug abuse, bilateral diabetic neuropathy of the upper extremities, PTSD, low back strain, and bilateral knee conditions. The veteran initially selected the hearing lane but later withdrew the request. The Board noted that additional evidence, including February 2024 VA examinations for the knees and lumbar spine, was submitted after the agency of original jurisdiction's March 2023 rating decision. However, due to the hearing lane selection and subsequent withdrawal, the Board could only consider evidence of record up to the March 2023 decision and 90 days following the November 2025 withdrawal letter, excluding the February 2024 examinations. The Board denied service connection for COPD, drug abuse, bilateral upper extremity diabetic neuropathy, and PTSD, finding insufficient evidence of in-service incurrence or a nexus to service. The claim for low back strain was denied an increased rating above 40 percent. Service connection for bilateral knee instability was granted at 10 percent, and the radiculopathy of the right and left lower extremities was granted at 40 percent each. The claims for chondromalacia with degenerative joint disease in both knees were denied an increased rating above 10 percent.

Rationale

No in-service onset or nexus to service; Evidence persuasively weighs against service connection

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5237

Docket No.

230526-349540

Full Decision Text

Citation Nr: A26035788
Decision Date: 04/16/26 Archive Date: 04/16/26

DOCKET NO. 230526-349540
DATE: April 16, 2026

ORDER

Entitlement to service connection for COPD is denied.

Entitlement to service connection for drug abuse is denied.

Entitlement to service connection for left upper extremity diabetic neuropathy is denied.

Entitlement to service connection for right upper extremity diabetic neuropathy is denied.

Entitlement to service connection for PTSD is denied.

Entitlement to a disability rating in excess of 40 percent for service-connected low back strain is denied.

Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy is granted.

Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy is granted.

Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia with degenerative joint disease (mild), right (previously rated as chondromalacia with degenerative joint disease and bilateral tripartite patella), is denied.

Entitlement to a separate 10 percent disability rating, and no higher, for right knee instability is granted.

Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia with degenerative joint disease (mild), left (previously rated as chondromalacia with degenerative joint disease and bilateral tripartite patella), is denied.

Entitlement to a separate 10 percent disability rating, and no higher, for left knee instability is granted.

FINDINGS OF FACT

1. COPD did not have its onset during the Veteran's active service and is not otherwise etiologically related to such service.

2. The evidence of record persuasively weighs against finding that the Veteran's drug abuse began during active service or is otherwise related to an in-service injury or disease.

3. Left upper extremity diabetic neuropathy is a complication of diabetes mellitus for which the Veteran is not service connected for.

4. Left upper extremity diabetic neuropathy is a complication of diabetes mellitus for which the Veteran is not service connected for.

5. There is no competent and credible evidence supporting the Veteran's claimed PTSD diagnosis. The Veteran has not been diagnosed with any other psychiatric disability.

6. During the appeal period, the Veteran's forward flexion of the thoracolumbar spine was at worst 15 degrees, and he does not have ankylosis of the entire thoracolumbar spine.

7. As of January 2023, the Veteran's left sciatic nerve radiculopathy manifests moderately severe incomplete paralysis.

8. As of January 2023, the Veteran's left sciatic nerve radiculopathy manifests moderately severe incomplete paralysis.

9. For the entire rating period on appeal, the Veteran's left knee disability was manifested by subjective complaints of pain; objective findings include range of motion testing of flexion to 75 degrees and extension to 10 degrees at worse, as well as localized tenderness or pain on palpation of the joint or associated soft tissue and crepitus; however, muscle atrophy and ankylosis, have not been shown.

10. Affording the Veteran, the benefit of the doubt, his left knee instability is best described as slight.

11. For the entire rating period on appeal, the Veteran's right knee disability was manifested by subjective complaints of pain; objective findings include range of motion testing of flexion to 75 degrees and extension to 10 degrees at worse, as well as localized tenderness or pain on palpation of the joint or associated soft tissue and crepitus; however, muscle atrophy and ankylosis have not been shown.

12. Affording the Veteran, the benefit of the doubt, his right knee instability is best described as slight.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for COPD are not met. 38 U.S.C. §§ 1101, 1111, 1131, 1132, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020).

2. The criteria for service connection for drug abuse are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303.

3. The criteria for service connection for diabetic neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R.
1132, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020).

2. The criteria for service connection for drug abuse are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303.

3. The criteria for service connection for diabetic neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655(b).

4. The criteria for service connection for diabetic neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655(b).

5. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.102, 3.156 (2020).

6. The criteria for entitlement to a disability rating in excess of 40 percent for lumbar spine strain with IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2020).

7. The criteria for an evaluation 40 percent, and no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.124; Diagnostic Code 8520 (2020).

8. The criteria for an evaluation 40 percent, and no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.124; Diagnostic Code 8520 (2020).

9. The criteria for a disability rating in excess of 10 percent for chondromalacia with degenerative joint disease (mild), left, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5261 (2020).

10. The criteria for entitlement to a separate 10 percent disability rating, and no higher, as of January 2023 for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020).

11. The criteria for a disability rating in excess of 10 percent for chondromalacia with degenerative joint disease (mild), right, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5261 (2020).

12. The criteria for entitlement to a separate 10 percent disability rating, and no higher, as of January 2023 for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1969 to April 1972 and from August 197
) 5261 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1969 to April 1972 and from August 1974 to February 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2023 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran selected the hearing lane when submitting his VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)) in May 2023.

In a November 2025 letter to VA, the Veteran withdrew his request for a Board hearing.

Pursuant to 38 C.F.R. § 20.302(b), if a claimant commences an AMA appeal and initially selects the hearing lane but withdraws his/her hearing request before the hearing is held, the Board adjudicates the claimant's challenges by issuing a decision based on a review of the evidence that is of record at the time of the underlying decision by the agency of original jurisdiction (AOJ), as well as the evidence submitted within 90 days following receipt of the claimant's request for withdrawal.

The Board notes that additional evidence was added to the Veteran's claims folder in February 2024, including VA examinations for the Veteran's bilateral knees and lumbar spine. However, as the Veteran selected the hearing lane, the Board may only consider evidence up to the March 2023 rating decision and 90 days following the November 2025 letter to withdraw the Veteran's hearing request. Therefore, the board may not consider the February 2024 VA examinations in the current appeal. If the Veteran wishes to have this evidence considered, he may submit a supplemental claim.

Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2020).

SERVICE CONNECTION

Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as hypertension, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309.

Where the veteran asserts entitlement to a chronic disease, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, if the chronic disease is listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), service connection may be based upon a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown,
For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), service connection may be based upon a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448.

In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to service connection for COPD

The Veteran asserts entitlement to service connection for COPD. The Veteran has not offered any lay statements in support of his claim.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

A review of the Veteran's service treatment records (STRs) shows no complaints, treatment, or diagnosis of COPD in service. The Veteran's lungs were routinely assessed as normal, and he denied shortness of breath and pain or pressure in chest. See February 1972 and July 1974 STRs.

A review of the Veteran's VA treatment records shows a diagnosis of COPD. See February 2024 VA Treatment Record.

In considering the evidence of record under the laws and regulations above, the Board finds that the Veteran's COPD does not warrant granting service connection.

There is an absence of COPD symptoms or complaints in the Veteran's STRs as well as a normal clinical evaluation in February 1972 and July 1974.

The Board notes that the Veteran has not been afforded a VA examination. However, a Veteran is not entitled to a VA examination based solely upon his own conclusory statements indicating a relationship between an in-service illness or injury and a present disability. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Instead, the record must contain some other factual basis supporting the Veteran's statements. Id. at 1278; see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010).

In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted. Specifically, while there must be competent evidence of a current disability, medically competent evidence is not required to indicate that the
an in-service illness or injury and a present disability. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Instead, the record must contain some other factual basis supporting the Veteran's statements. Id. at 1278; see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010).

In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted. Specifically, while there must be competent evidence of a current disability, medically competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. However, a conclusory generalized lay statement suggesting a nexus between a current disability and service does not meet this standard, as this would result in medical examinations being routinely and virtually automatically provided to all Veterans claiming service connection. Waters, 601 F.3d at 1278-1279. There must also be evidence establishing that an event, injury, or disease occurred during service. Id.

Here, the Veteran has not provided any information regarding a specific injury or event in service that would have caused his current COPD. Generalized lay allegations, such as the Veteran's general claim of entitlement to service connection for COPD merely by listing them on his application for compensation are insufficient to meet the McLendon standards. See Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). Thus, the competent evidence of record shows no connection between the Veteran's COPD and his active service. As such, there is insufficient justification to obtain a VA examination at this time.

In summary, because all the elements required for a finding of service connection for COPD are not shown, the persuasive weight of the evidence is against the Veteran's claim, and his claim is denied. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to service-connection for COPD is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to service connection for drug abuse

The Veteran asserts entitlement to service connection for drug abuse. The Board notes that the Veteran contends "exposure" caused his drug abuse in service, for which he is in recovery for. See December 2022 Fully Developed Claim. The Veteran has not put forth any other explantation as to why his drug abuse should be service connected.

Compensation cannot be awarded pursuant to 38 U.S.C. §§ 105, 1110, 1131 either for a primary drug abuse disability incurred during service or for any secondary disability that resulted from primary drug abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a Veteran's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability.

In order to qualify for service connection, the veteran must establish by clear medical evidence that his or her alcohol or drug abuse disability is secondary to or caused by the primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368, 137677 (Fed. Cir. 2001).

The Veteran has not identified any service-connected disability for which his drug abuse is secondary to. As there is no lay or medical evidence linking the Veteran's drug abuse to a service-connected disability, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

3. Entitlement to service connection for left upper extremity diabetic neuropathy

4. Entitlement to service connection for right upper extremity diabetic neuropathy

The Veteran asserts entitlement to service connection for bilateral upper extremity diabetic neuropathy.
and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368, 137677 (Fed. Cir. 2001).

3. Entitlement to service connection for left upper extremity diabetic neuropathy

4. Entitlement to service connection for right upper extremity diabetic neuropathy

The Veteran asserts entitlement to service connection for bilateral upper extremity diabetic neuropathy. The Veteran contends that his neuropathy is secondary to his diabetes. See December 2022 Fully Developed Claim. The Board notes that the Veteran is not currently service connected for diabetes.

Review of the Veteran's VA treatment records shows a diagnosis of peripheral diabetic neuropathy.

Diabetic neuropathy is "any of several clinical types of polyneuropathy seen with diabetes mellitus." Dorland's Illustrated Medical Dictionary, 1268 (32d Ed. 2012). Because diabetic neuropathy is, by definition, a complication of diabetes mellitus, if diabetes mellitus is not service connected, it follows that diabetic neuropathy is also not service connected. The Veteran has not identified any other theory of entitlement for service connection for bilateral upper extremity diabetic neuropathy. For those reasons, entitlement to service connection for diabetic neuropathy of the bilateral upper extremities is denied.

5. Entitlement to service connection for PTSD

The Veteran asserts entitlement to service connection for PTSD. The Board notes that the Veteran has not indicated any specific event in service from which his claimed PTSD stems from.

Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (recently amended as the DSM-V)); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f).

The Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

A review of the Veteran's service treatment records (STRs) shows no complaints, symptoms, or treatment for any psychiatric disabilities. The Veteran routinely denied any mental health symptoms. See February 1972 and July 1974 STRs.

A review of the Veteran's VA treatment records shows no diagnosis of any psychiatric disability. The Veteran has routinely denied depression, anxiety, suicidal ideation, and hallucinations. See, e.g., January 2021, January 2022, and June 2023 VA Treatment Records. Administered PTSD screenings were negative. See, e.g., April 2010, June 2013, and October 2019 VA Treatment Records.

After a review of the evidence, the Board finds that entitlement to service connection for PTSD is not warranted.

The Board notes that neither the Veteran nor his representative have produced any evidence (lay or medical) to support a claim of entitlement to service connection for PTSD. Significantly, they have not asserted that the Veteran has ever been diagnosed with or is currently diagnosed with PTSD.

Therefore, the Board finds that the evidence persuasively weighs against finding that service connection for PTSD is warranted. In this case, the medical evidence of record does not reflect a current diagnosis of PTSD, and no such diagnosis has been rendered at any time during the pendency of the appeal. See 38 C.F.R. § 3.303 (a), (d); McClain, 21 Vet. App. 319 (2007); Romanowsky, 26 Vet. App. 289 (2013).

Therefore, the Board finds that entitlement to service connection for PTSD is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the persuasive weight of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b).

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities
303 (a), (d); McClain, 21 Vet. App. 319 (2007); Romanowsky, 26 Vet. App. 289 (2013).

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for the time period beginning one year before the claim was filed until VA makes a final decision on the claim. Id.

When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' "as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

6. Entitlement to a disability rating in excess of 40 percent for service-connected low back strain

The Veteran asserts entitlement to a disability rating in excess of 40 percent for service-connected lumbar spine disability.

On July 15, 2022, the Veteran submitted an intent to file. On December 16, 2022, the Veteran submitted a Fully Developed Claim. Under applicable VA regulations, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o). Thus, the proper period on appeal for an increased rating claim is one year prior to receipt of the claim. As the Veteran's claim for an increased rating was received on July 15, 2022, review of all evidence of record dating back to July 15, 2021, is appropriate to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating. See Hazan v. Gober, 10 Vet. App. 511 (1992).

Therefore, the permissible evidence windows for this appeal are from January 15, 2021, to March 22, 2023 (rating decision on appeal) and from November 19, 2025 (notice of withdrawal from Board hearing) to February 17, 2026 (90 days following the notice of withdrawal of the Board hearing).

The Veteran's lumbar spine disability is currently rated under DC 5243-
of record dating back to July 15, 2021, is appropriate to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating. See Hazan v. Gober, 10 Vet. App. 511 (1992).

The Veteran's lumbar spine disability is currently rated under DC 5243-5237. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a.

Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic 5243.

An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

The evidence of record is conflicted on whether the Veteran has IVDS, with some examinations noting IVDS and others not. However, he has never been prescribed bed rest. Thus, a rating based on IVDS is not appropriate and the Veteran's spine disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V.

Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Veteran was afforded a VA examination in January 2023.
Injuries of the Spine, Diagnostic Code 5237.

The Veteran was afforded a VA examination in January 2023. The Veteran reported constant low back pain. The Veteran endorsed flare ups and functional loss, described as back pain and stiffness with prolonged sitting, standing, and walking. ROM testing revealed forward flexion limited to 15 degrees, extension to 10 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees, with pain noted on all movements. Passive ROM could not be tested due to pain. There was no evidence of crepitus or localized pain on palpation. The Veteran was unable to perform repetitive use testing due to pain. The VA examiner reported that pain, fatigability, weakness, and lack of endurance limit the Veteran's functional ability with repeated use over time and during flare ups, limiting forward flexion to 5 degrees, extension to 0 degrees, right lateral flexion to 0 degrees, left lateral flexion to 0 degrees, right lateral rotation to 0 degrees, and left lateral rotation to 0 degrees. The VA examiner noted guarding that results in an abnormal gait. Muscle strength was 3/5 at worse with no atrophy. Reflex exam was normal but sensory exam was decreased. The VA examiner reported no ankylosis of the lumbar spine nor IVDS. The VA examiner reported that the Veteran's spine disability impacts his ability to work, causing an inability to twist, kneel, or squat.

Upon review of the evidence, the Board finds that a rating in excess of 40 percent is not warranted. In order to warrant the next highest rating, unfavorable ankylosis must be shown. The evidence of record is absent of any findings or notations of unfavorable ankylosis of the entire thoracolumbar spine.

The Board acknowledges the lay reports of the Veteran's symptoms, to include pain and decreased motion. The Board has also taken into consideration the provisions under Deluca. The Board notes that the Veteran has functional impairment on repeated use due to pain and fatigue. However, the Board finds that the Veteran's symptoms and functional limitations do not more closely approximate the criteria for the next higher rating. 38 C.F.R. § § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).

In addition, the Board notes that the VA examinations endorsed that the Veteran experiences flare-ups and functional loss. However, the Veteran is evaluated at the highest rating available based on limitation of motion as of January 2013. For a higher rating the Veteran would need to have ankylosis, which he does not have.

The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. In this regard, the Veteran is already service-connected for radiculopathy of the right and left lower extremities in the sciatic nerves as a result of his back disability. The record does not show additional neurological symptomatology related to his back disability.

In reaching these conclusions the Board has considered the doctrine of reasonable doubt, however, as the persuasive weight of the evidence is against the claim, the doctrine is not for application.

7. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy

8. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy

The Veteran asserts entitlement to disability ratings in excess of 20 percent for his service-connected bilateral lower extremity radiculopathy.

8. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy

The Veteran asserts entitlement to disability ratings in excess of 20 percent for his service-connected bilateral lower extremity radiculopathy.

On July 15, 2022, the Veteran submitted an intent to file. On December 16, 2022, the Veteran submitted a Fully Developed Claim. Under applicable VA regulations, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o). Thus, the proper period on appeal for an increased rating claim is one year prior to receipt of the claim. As the Veteran's claim for an increased rating was received on July 15, 2022, review of all evidence of record dating back to On July 15, 2021 is appropriate to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating. See Hazan v. Gober, 10 Vet. App. 511 (1992).

The Veteran's bilateral lower extremity radiculopathies are currently rated under DC 8520. Under this Diagnostic Code, mild incomplete paralysis of the sciatic nerve warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent disability rating. For complete paralysis, defined as when the foot dangles and drops with no active movement possible of the muscles below the knee and flexion of the knee is weakened or (very rarely) lost, an 80 percent disability rating is warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The words mild, moderate, and severe as used in the various Diagnostic Codes are not defined in the Rating Schedule. Further, use of such terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild or, at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves.

The Veteran was afforded a VA examination in January 2023. The Veteran reported continuing radicular pain. The VA examiner noted moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the bilateral lower extremities. Muscle strength was 4/5 at worse with no atrophy. Reflexes were absent in the bilateral ankles and sensation to light touch was decreased in the bilateral thighs, knees, lower legs, and feet. There were no trophic changes. The Veteran's gait was abnormal due to his back, radiculopathy, and bilateral knees. The VA examiner reported moderately severe incomplete paralysis of the sciatic nerve. The VA examiner reported that the Veteran's bilateral lower extremity radiculopathy impacts his ability to work, with weakness causing a slow antalgic gait and reliance on assistive devices for ambulation.

Following a review of the evidence of record, the Board finds that increased 40 percent disability ratings are warranted for the Veteran's bilateral sciatic nerve radiculopathy.

During his January 2023 VA examination, the VA examiner noted moderately severe incomplete paralysis of the bilateral sciatic nerves.

The Veteran is not entitled to disability ratings in excess of 40 percent. There is no evidence of severe incomplete paralysis with muscle atrophy to warrant the higher rating of 60 percent. See January 2023 VA Examination Report.

Therefore, disability ratings of 40 percent for the bilateral lower extremity sciatic radiculopathy, but no higher, are warranted from February 2023.

9. Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia with degenerative joint
increased 40 percent disability ratings are warranted for the Veteran's bilateral sciatic nerve radiculopathy.

During his January 2023 VA examination, the VA examiner noted moderately severe incomplete paralysis of the bilateral sciatic nerves.

Therefore, disability ratings of 40 percent for the bilateral lower extremity sciatic radiculopathy, but no higher, are warranted from February 2023.

9. Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia with degenerative joint disease (mild), right (previously rated as chondromalacia with degenerative joint disease and bilateral tripartite patella),

10. Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia with degenerative joint disease (mild), left (previously rated as chondromalacia with degenerative joint disease and bilateral tripartite patella),

The Veteran asserts entitlement to disability ratings in excess of 10 percent for his service-connected bilateral knee disabilities, limitation of extension.

The Board notes that, prior to a promulgation of a decision in this appeal, the Veteran's bilateral knees were granted additional increased ratings. Currently, the Veteran is in receipt of 20 percent disability ratings for limitation of extension, 10 percent disability ratings for instability, and noncompensable ratings for limitation of flexion, all effective September 19, 2023. See February 2024 Rating Decision. These increased ratings were based on the Veteran's February 2024 VA knee examination showing worsening symptoms. However, as addressed above, under the selected hearing lane, the Board may only review evidence up to the March 2023 rating decision and evidence submitted 90 days after November 2025, when the Veteran withdrew his hearing request.

Therefore, the permissible evidence windows for this appeal are from January 15, 2021 (one year prior to the Intent to File) to March 22, 2023 (rating decision on appeal) and from November 19, 2025 (notice of withdrawal from Board hearing) to February 17, 2026 (90 days following the notice of withdrawal of the Board hearing).

In the current appeal, the Veteran's bilateral knee disabilities are rated under DC 5010-5261, for limitation of extension.

Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005).

Under Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260.

Under Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for
0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260.

Under Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees.

Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

Additionally, the United States Court of Appeals for Veterans Claims (Court) recently held that evaluation of a knee disability under Codes 5257 or 5261 (and by Code 5260) or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Codes 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Code. In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca, 8 Vet. App. at 202. Id.

Under Diagnostic Code 5256, a 30 percent rating is assigned for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating may be assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating may be assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256.

Under Diagnostic Code 5257, recurrent subluxation or lateral instability warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a 30 percent rating if severe. The words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," under 38 C.F.R. § 4.6.

Under Diagnostic Code 5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. Under Diagnostic Code 5259, cartilage, semilunar, removal of, symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259.

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. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under
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. § 4.71a (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 § 4.71a [or 4.73] criteria.").

The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision. Specifically, and as relevant to this case, revisions to Diagnostic Code 5003, 5010, and 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021).

Prior to February 7, 2021, Diagnostic Code 5010, instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003.

Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25.

Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension).

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II.

The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004).

As it pertains to recurrent subluxation or instability of the knee, and as noted above, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g).

Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation
7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g).

Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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 either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 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.

As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Note (2): 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). See DC 5257 (Effective February 7, 2021).

Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.

Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage.

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA's General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

The Veteran was afforded a VA examination in January 2023. The Veteran reported continuing bilateral knee pain and a feeling
or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA's General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

The Veteran was afforded a VA examination in January 2023. The Veteran reported continuing bilateral knee pain and a feeling like his knees will give way. The Veteran denied flare ups but endorsed functional loss, described as increased stiffness and pain after prolonged sitting, standing, and walking as well as an inability to twist, kneel, or squat. The VA examiner noted a history of subluxation and recurrent effusion in both knees. Range of motion (ROM) testing revealed bilateral knee flexion limited to 85 degrees and extension to 0 degrees, with pain noted on both movements. Passive ROM was the same as active. The VA examiner noted evidence of crepitus but no evidence of localized tenderness on palpation. The Veteran was able to perform repetitive use testing with no additional loss of function or ROM, bilaterally. The VA examiner reported that pain, fatigability, weakness, and lack of endurance limit the Veteran's functional ability with repeated use over time, limiting bilateral flexion to 75 degrees and bilateral extension to 10 degrees. There was no evidence of muscle atrophy in either knee or ankylosis. The VA examiner noted bilateral recurrent subluxation with no ligament tear nor prescription for a cane, walker, or brace. The VA examiner further noted that Lachman and posterior drawer tests were normal and there was no objective evidence of instability bilaterally. There was no evidence of recurrent patellar instability. The Veteran has no diagnosis of any tibial or fibular impairment. The VA examiner noted a right knee meniscal tear with no episodes of joint locking, pain, or effusion. The Veteran reported occasional use of brace and constant use of a cane and walker for ambulation. The VA examiner reported that the Veteran's bilateral knee disabilities impact his ability to work, limiting prolonged sitting, standing, and walking.

Left Knee

The Veteran asserts entitlement to a disability rating in excess of 10 percent for his service-connected left knee disability, limitation of extension.

The Board concludes that the Veteran's left knee disability does not meet or more nearly approximate the criteria for a rating in excess of 10 percent for limitation of extension due to painful limitation of motion. A review of the medical evidence of record shows that for the entire period on appeal the Veteran's right knee extension has been limited to no worse than 10 degrees. See January 2023 VA Examination Report.

The Veteran has never demonstrated the functional equivalent of extension limited to 15 degrees in order to warrant a higher disability rating under DC 5261. Throughout the appeal period, he maintained extension to, at worst, ten degrees, to include during a flare-up and after repetitive use testing. As such, a rating in excess of 10 percent under Diagnostic Code 5261 is not warranted.

The Veteran has also not demonstrated the functional equivalent of flexion limited to 60 degrees in order to warrant a separate disability rating under DC 5260. Throughout the appeal period, he maintained flexion to, at worst, 75 degrees, to include during a flare up and after repetitive use testing. As such, a separate rating under DC 5260 is not warranted for the period under appeal.

The Board recognizes the Veteran's reports of continued left knee pain. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with prolonged walking or standing). However, even considering additional limitation of motion or function of the bilateral knees due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the Veteran's left knee disability more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examinations discussed above showed no significant decreased range of motion in either knee as would warrant the next higher rating.

Moreover, there is no evidence of any left knee ankylosis, dislocated semilunar cartilage, or impairment of the tibia and fibula in the left knee to support higher or separate ratings under DCs 5256, 5258, 5259, or 5262. See January 2023 VA Examination Report.

However, the
C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the Veteran's left knee disability more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examinations discussed above showed no significant decreased range of motion in either knee as would warrant the next higher rating.

However, the Board finds that the Veteran is entitled to a separate disability rating under DC 5257 for left knee instability as of January 2023. Based on the evidence, the Board finds that, affording the Veteran the benefit of the doubt, his left knee instability warrants a separate 10 percent rating, and no higher.

Stability testing during the period on appeal has consistently found no instability, but the Veteran has reported that his left knee buckles. For example, during his January 2023 VA examination, the Veteran reported that his left knee gives way. The Veteran has been noted to wear a knee brace to aid in ambulation. See January 2023 VA examination Report.

The Board notes that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported left knee instability, the Board finds that separate 10 percent rating is warranted for slight lateral instability for the rating period on appeal.

The Veteran's left knee instability is not more accurately described as moderate. The medical records do not specifically describe instability of the knee joint and the January 2023 VA examiner found that the knee joint is normal on stability tests. Furthermore, the Veteran has not been prescribed a knee brace, as required under the new regulations. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight in nature. Accordingly, a separate 10 percent rating, but no higher, for right knee instability is warranted as of January 2023.

Given the above, the Board finds that the weight of the evidence is against the assigment of a rating in excess of 10 percent for the Veteran's left knee limitation of extension. Therefore, the claim for an increased rating in excess of 10 percent for the Veteran's left knee disability must be denied.

Right Knee

The Veteran asserts entitlement to a disability rating in excess of 10 percent for his service-connected right knee disability.

The Board concludes that the Veteran's right knee disability does not meet or more nearly approximate the criteria for a rating in excess of 10 percent for limitation of extension due to painful limitation of motion. A review of the medical evidence of record shows that for the entire period on appeal the Veteran's right knee extension has been limited to no worse than 10 degrees. See January 2023 VA Examination Report.

The Board recognizes the Veteran's reports of continued right knee pain. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with prolonged walking or standing). However, even considering additional limitation of motion or function of the bilateral knees due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the Veteran's right knee disability more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examinations discussed above showed no significant decreased range of motion in either knee as would warrant the next higher rating.

Moreover, there is no evidence of any right knee ankylosis, dislocated semilunar cartilage, or impairment of the tibia and fib
prolonged walking or standing). However, even considering additional limitation of motion or function of the bilateral knees due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the Veteran's right knee disability more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examinations discussed above showed no significant decreased range of motion in either knee as would warrant the next higher rating.

Moreover, there is no evidence of any right knee ankylosis, dislocated semilunar cartilage, or impairment of the tibia and fibula in the left knee to support higher or separate ratings under DCs 5256, 5258, 5259, or 5262. See January 2023 VA Examination Report.

However, the Board finds that the Veteran is entitled to a separate disability rating under DC 5257 for right knee instability as of January 2023. Based on the evidence, the Board finds that, affording the Veteran the benefit of the doubt, his right knee instability warrants a separate 10 percent rating, and no higher.

Stability testing during the period on appeal has consistently found no instability, but the Veteran has reported that his right knee buckles. For example, during his January 2023 VA examination, the Veteran reported that his right knee gives way. The Veteran has been noted to wear a knee brace to aid in ambulation. See January 2023 VA examination Report.

The Board notes that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported right knee instability, the Board finds that separate 10 percent rating is warranted for slight lateral instability for the rating period on appeal.

The Veteran's left knee instability is not more accurately described as moderate. The medical records do not specifically describe instability of the knee joint, and the January 2023 VA examiner found that the knee joint is normal on stability tests. Furthermore, the Veteran has not been prescribed a knee brace, as required under the new regulations. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight in nature. Accordingly, a separate 10 percent rating, but no higher, for right knee instability is warranted as of January 2023.

Given the above, the Board finds that the weight of the evidence is against the assigment of a rating in excess of 10 percent for the Veteran's right knee limitation of extension. Therefore, the claim for an increased rating in excess of 10 percent for the Veteran's right knee disability must be denied.

Ardie A. Bland

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A.C. Slaughter, Associate Counsel

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

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