Case A26037756

SCOTT W. DALE · 2026 · Case ID: A26037756

MIXED

Summary

The veteran, who served in the U.S. Army from February 1981 to February 1985, sought to revise prior rating decisions based on clear and unmistakable error (CUE) and to obtain an increased rating for his left knee disability. The Board addressed three prior RO decisions (April 1985, November 2014, and January 2015) concerning the left knee, all of which denied a compensable rating. The Board found these decisions to be final and that the veteran failed to establish CUE, denying the revision applications. The veteran also claimed entitlement to a higher rating for his left knee post-total knee replacement (post-TKR), arguing against a prior offset for a pre-existing condition. The Board found the post-TKR disability fundamentally different from the pre-service condition, thus the offset was improper. The Board granted a 30 percent rating for the post-TKR left knee effective September 1, 2020, finding the minimum criteria met. Additionally, the Board granted a separate 10 percent rating for slight left knee instability from January 14, 2019, to July 30, 2019, and again effective September 1, 2020, based on lay evidence and constructive receipt of records, as the medical evidence was unclear on the exact cause of instability. The Board also addressed a claim for a torn quadricep tendon, finding it was not properly pled as a secondary service connection claim and thus not adjudicated.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

211008-191262

Full Decision Text

Citation Nr: A26037756
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 211008-191262
DATE: April 22, 2026

ORDER

The application to revise an April 11, 1985, rating decision (April 1985 decision), based on clear and unmistakable error (CUE), which denied a compensable evaluation for a left knee disability, is denied.

The application to revise a November 14, 2014, rating decision (November 2014 decision), based on CUE, which denied a compensable evaluation for a left knee disability, is denied.

The application to revise a January 7, 2015, rating decision (January 2015 decision), based on CUE, which denied a compensable evaluation for a left knee disability, is denied.

Entitlement to a rating of 30 percent for a left knee disability, status post-total knee replacement (post-TKR) is granted effective September 1, 2020.

From January 14, 2019, to July 30, 2019, entitlement to a separate 10 percent rating for instability of the left knee, is granted.

From September 1, 2020, entitlement to a separate 10 percent rating for instability of the left knee, post-TKR, is granted.

FINDINGS OF FACT

1. The Veteran did not appeal the April 1985 decision that denied entitlement to a compensable rating for a left knee disability. Thus, the decision became final.

2. The Veteran has not established that the correct facts, as then known, were not before the RO at the time of the April 1985 decision, or that the RO incorrectly applied the applicable statutory and regulatory provisions existing at the time of that decision, with regard to entitlement to a compensable rating for a left knee disability.

3. The Veteran did not appeal the November 2014 decision that denied entitlement to a compensable rating for a left knee disability. Thus, the decision became final.

4. The Veteran has not established that the correct facts, as then known, were not before the RO at the time of the November 2014 decision, or that the RO incorrectly applied the applicable statutory and regulatory provisions existing at the time of that decision, with regard to entitlement to a compensable rating for a left knee disability.

5. The Veteran did not appeal the January 2015 decision that denied entitlement to a compensable rating for a left knee disability. Thus, the decision became final.

6. The Veteran has not established that the correct facts, as then known, were not before the RO at the time of the January 2015 decision, or that the RO incorrectly applied the applicable statutory and regulatory provisions existing at the time of that decision, with regard to entitlement to a compensable rating for a left knee disability.

7. The Veteran's left knee post-TKR is a fundamentally different disability than his pre-service post-meniscectomy disability and a deduction of 10 percent for pre-existing disability from the rating is improper.

8. Since September 1, 2020, the Veteran's left knee post-TKR has not been manifested by severely limited motion (to include as due to pain), severe weakness, and/or ankylosis separate and distinct from his post-TKR residuals.

9. From January 14, 2019, to July 30, 2019, the Veteran's left knee was manifested by instability which is slight, but not moderate or severe.

10. Since September 1, 2020, the Veteran's left knee post-TKR was manifested by instability which is slight, but not moderate or severe.

CONCLUSIONS OF LAW

1. The April 1985 rating decision denying entitlement to a compensable rating for a left knee disability is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1984).

2. The criteria for revision on the grounds of CUE of the April 1985 rating decision that denied entitlement to a compensable rating for a left knee disability have not been met. 38 U.S.C. § 5109A, 5110 (1982); 38 C.F.R. § 3.105, 3.303, 3.310, 3.400, 4.71a, Diagnostic Code 5259 (1984).

3. The November 2014 rating decision denying entitlement to a compensable rating for a left knee disability is final. 38 U.S.C. § 4005(c) (2012); 38 C.F.R. §§ 3.104, 19.118,
of CUE of the April 1985 rating decision that denied entitlement to a compensable rating for a left knee disability have not been met. 38 U.S.C. § 5109A, 5110 (1982); 38 C.F.R. § 3.105, 3.303, 3.310, 3.400, 4.71a, Diagnostic Code 5259 (1984).

3. The November 2014 rating decision denying entitlement to a compensable rating for a left knee disability is final. 38 U.S.C. § 4005(c) (2012); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2014).

4. The criteria for revision on the grounds of CUE of the November 2014 rating decision that denied entitlement to a compensable rating for a left knee disability have not been met. 38 U.S.C. § 5109A, 5110 (2012); 38 C.F.R. § 3.105, 3.303, 3.310, 3.400, 4.71a, Diagnostic Code 5259 (2014).

5. The January 2015 rating decision denying entitlement to a compensable rating for a left knee disability is final. 38 U.S.C. § 4005(c) (2012); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2014).

6. The criteria for revision on the grounds of CUE of the January 2015 rating decision that denied entitlement to a compensable rating for a left knee disability have not been met. 38 U.S.C. § 5109A, 5110 (2012); 38 C.F.R. § 3.105, 3.303, 3.310, 3.400, 4.71a, Diagnostic Code 5259 (2014).

7. Since September 1, 2020, the criteria for a rating of 30 percent for left knee disability post-TKR are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.322(a), 4.1, 4.3, 4.7, 4.22, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055.

8. From January 14, 2019, to July 30, 2019, the criteria for a separate 10 percent rating, but no higher, for a slight left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code 5257.

9. Since September 1, 2020, the criteria for a separate 10 percent rating, but no higher, for a slight left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from February 1981 to February 1985.

The Veteran's claims originate from several rating decisions issued by a Department of Veterans Affairs (VA) regional office (RO). With regards to his applications to revise prior rating decisions based on CUE, the RO denied such in a June 2021 rating decision. With regards to his claim for an increased rating for his knee, the RO denied that claim in a July 2021 rating decision.

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the June 2021 and July 2021 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider for the claim for an
decision.

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider for the claim for an increased rating for his knee, 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 claim, 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 previously addressed the issues in the decision in February 2025. Thereafter, the Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In October 2025, through a Joint Motion for Partial Remand (JMPR), the decision was vacated and remanded to the Board for additional action.

Mailing Address Issues

The Board notes that there are a number of documents that have been returned due to an incorrect/invalid address on the part of the Veteran. However, the Veteran is represented and continues to file appeals and new claims, showing that he has received ample notice of these decisions. Thus, the Board infers that the Veteran has not been prejudiced by whatever complication(s) is/are causing the mailing disruptions.

Left Quadricep Tendon Claim

In the Veteran's April 2021 Supplemental Claim, he contended as a result of his left knee post-TKR, he fell down the stairs and tore the quadricep tendon in his left leg. While this was noted on examination in August 2020, the Veteran was not granted a higher/separate rating.

Rather than a neurological disability or claim that is reasonably raised in connection with the Veteran's left knee post-TKR rating, the Board finds this claim is one for secondary service connection and must be formally pled for it to be addressed by the RO. In this regard the Veteran asserts that the tendon tore because of a fall ("but-for" causation), rather than the post-TKR itself causing or aggravating the tendon/instability.

As it is not on appeal, the Board will not adjudicate it. Should the Veteran desire to file a claim for secondary service connection, the Veteran is advised to file a claim identifying this theory of entitlement.

However, the Board is granting a 10 percent rating under Diagnostic Code 5257 based on instability effective September 1, 2020. Note 1 to the current version of Diagnostic Code 5257 (post-February 7, 2021) states that "for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon." Thus, it is possible that any symptomology for a future claim based on the service connection for the quadricep tendon would already be contemplated under the Board's grant herein.

Revision based upon CUE

As explained in more detail below, the Veteran asserts that April 1985, November 2014, and January 2015 decisions must be revised based on CUE.

Applicable Caselaw, Statutory, and Regulatory Provisions

Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a).

CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure
grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a).

CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id., at 44.

The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246.

If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA's failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003).

Finality

Prior to addressing the merits of the Veteran's claim, the Board must first address whether the April 1985, November 2014, and January 2015 decisions are final. An assertion of CUE is a collateral attack on an otherwise final decision by the RO or Board. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994).

The Veteran did not appeal the April 1985, November 2014, and January 2015 decisions. Thus, they became final. Further, he does not otherwise contend that the decision is not final. Thus, the Board finds the decisions to be final.

Specifically, with regard to the January 2015 decision, the RO did not review certain evidence at the time of the November 2014 decision
1985, November 2014, and January 2015 decisions are final. An assertion of CUE is a collateral attack on an otherwise final decision by the RO or Board. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994).

Specifically, with regard to the January 2015 decision, the RO did not review certain evidence at the time of the November 2014 decision. Thus, a second decision was issued. However, it did not reconsider any evidence from the November 2014 decision. Thus, the Board is treating it as a separate decision.

Reduction of Ratings

The Veteran's advances several arguments as to why the April 1985, November 2014, and January 2015 decisions must be revised. The first is that the ratings were improperly reduced.

By way of background, the Veteran was granted service connection for his left knee, status-post meniscectomy and post-traumatic chondromalacia, in the April 1985 decision. While the Veteran was service-connected for his left knee disability (in totality) under Diagnostic Code 5299-5259 and a 10 percent rating would have been warranted, he was assigned an initial noncompensable evaluation because his meniscus injury pre-existed service and thus it was offset by a certain percentage (10 percent).

38 C.F.R. § 4.22 pertains to "Rating of disabilities aggravated by active service." In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. The resulting difference will be recorded on the rating sheet. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. 38 C.F.R. § 4.22 (1984).

In considering 38 C.F.R. § 4.22, the Veteran advances several arguments. First, that the entrance examination "only shows scars for the left knee" and everything else is marked as normal. Thus, this is not enough to surmount the presumption of soundness. Second, the decision cited to 38 C.F.R. § 3.321 which does not contemplate reduced ratings per aggravation and no regulation does, to include 38 C.F.R. § 3.310.

Taking the second point first, while 38 C.F.R. § 3.321 does not contemplate reduced ratings and 38 C.F.R. § 3.310 considers aggravation by a service-connected disability (i.e. secondary service connection), 38 C.F.R. § 4.22 clearly pertains to "Rating of disabilities aggravated by active service." Thus, 38 C.F.R. § 4.22 is the governing statute and was in existence at the time of the April 1985 decision.

Turning to whether the Veteran's disability pre-existed service, the April 1985 decision states, in pertinent part:

Three scars on the left knee measuring two to three inches long, were shown on the enlistment examination in December 1980. The Veteran submitted medical evidence from his private physician showing treatment for a left knee condition from September 1976 to December 1980. He was scheduled for a left knee arthrogram in November 1978, because the examiner suspected a meniscus tear. Arthrogram showed a medial meniscus tear. A medial meniscectomy of the left knee was performed later that month. Private physician stated in a letter dated December 1980, that the veteran had had ample time for rehabilitation and stated that he would be able to participate in all activities without restrictions one week later.

While in service, he was seen in the orthopedic clinic in June 1981, complaining of interim pain and instability of the left knee since injury on two occasions. Examination of the left knee showed a well healed scar with extension from 10 degrees to 120 degrees, no evidence of effusion, tenderness, or instability.
November 1978, because the examiner suspected a meniscus tear. Arthrogram showed a medial meniscus tear. A medial meniscectomy of the left knee was performed later that month. Private physician stated in a letter dated December 1980, that the veteran had had ample time for rehabilitation and stated that he would be able to participate in all activities without restrictions one week later.

While in service, he was seen in the orthopedic clinic in June 1981, complaining of interim pain and instability of the left knee since injury on two occasions. Examination of the left knee showed a well healed scar with extension from 10 degrees to 120 degrees, no evidence of effusion, tenderness, or instability. He later complained of left knee injuries and March 1982 and January 1983. An operative report in September 1982 showed marked grade II chondromalacia of the patella. The meniscus was intact. All in all, the Veteran had a remarkably stable knee four years post-operative from his first operation and minimal instability. The Veteran continued to complain of a left knee injury in January 1983 and pain in October 1984, until discharge. Physical exam revealed swelling and effusion. There was full range of motion with pain in the popliteal fossa. An assessment of left knee strain was made.

The Board has considered the Veteran's service treatment records (STRs) and finds them to support the findings of the April 1985 decision. With regards to the Veteran's assertion that his entrance examination "only shows scars for the left knee," while the first page of the Veteran's entrance examination only lists scars, the second page recommends an orthopedic follow-up for the Veteran's left knee. Further, on the Veteran's report of medical history at entrance, the Veteran self-reported his extensive history of knee injuries and treatment. Specifically, the signing doctor lists "1980 (March) had ligamentous reconstruction of left knee and lateral meniscotomy." At separation, the examination contains diagnoses of "medial meniscectomy left knee 1978 and chondroplasty 1982."

Equipped with this information, the Board will now analyze whether the Veteran's knee was sound upon entrance. By statute, all veterans are presumed to have entered service in sound condition except as to those defects, infirmities or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C. § 1111. A condition found and record in the entrance medical examination is considered note, however a pre-service condition that is reported in the report of medical history does not consider a "notation." 38 C.F.R. § 3.304(b). Here, the Veteran's entrance examination recommends an orthopedic follow-up for the Veteran's left knee. Thus, the Board finds that some knee disorder is "noted" at entry, even if it did become clear until after the Veteran submitted additional medical records.

Even assuming arguendo that the Veteran's left knee was not noted on entry, whether the Veteran's injury preexisted service can be rebutted by clear and unmistakable evidence. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this regard, before the 1990 effective date of 38 U.S.C. § 5104(b), rating decisions were not required to set forth in detail the factual bases. See Natali v. Principi, 375 F.3d 1375, 1381 (Fed. Cir. 2004) (holding that statements of reasons or bases in RO decisions were not required prior to the Veterans' Benefits Amendments of 1989, which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision); see also Eddy v. Brown, 9 Vet. App. 52, 58 (1996) (holding that "silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record"). In the absence of evidence to the contrary, the rating board is presumed to have made the requisite findings. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005).

Here, the Board finds the April 1985 decision laid out the factual findings in support of its position that the knee disorder did preexist service. Further, if extensive documentation of the nature, treatment, and rehabilitation of a knee injury pre-service would not constitute (clear and unmistakable evidence of) a preexisting injury, the Board is not sure what would. Therefore, there is no absence of evidence to the contrary and the rating board is presumed to have made the requisite findings, to include that such disability clearly and unmistakably pre
, the rating board is presumed to have made the requisite findings. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005).

Thus, the Board finds that the Veteran had a pre-existing left knee injury prior to service: left knee, status post medial meniscectomy. The April 1985 decision found aggravation of the condition during service such that service connection was warranted. The Veteran's remaining argument deals with the degree of disability over the baseline injury.

Aggravation

The analysis now turns back to 38 C.F.R. § 4.22 pertains to "Rating of disabilities aggravated by active service." The regulation can be broken down in two parts: 1) the degree of disability at the time of entrance and 2) the degree of disability "over and above" the disability at the time of entrance. Further, if the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made.

The April 1985 decision rated the Veteran's left knee under Diagnostic Code 5299-5959. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Diagnostic Code ending in "99" indicates the disability is rated by analogy to Diagnostic Code 5259, which pertains to removal of semilunar cartilage (i.e. meniscus).

Under Diagnostic Code 5259, a 10 percent rating was warranted for "cartilage, semilunar, removal of symptomatic." There is no other criteria, symptomology, or higher rating associated with the Diagnostic Code.

The Veteran's meniscus was symptomatic at entrance/during service and the Veteran's meniscus was symptomatic at the time of the examination. As there is only one rating (10 percent), that rating must be subtracted from itself. Given the above, the Veteran's symptomatic meniscus was noted in service and was aggravated by service. However, because the Veteran's meniscus was symptomatic at service entrance and separation, a noncompensable evaluation is the appropriate rating.

The analysis now turns to the other errors alleged by the Veteran as it applies to each rating decision.

1. Whether the April 1985 decision that assigned a noncompensable rating should be revised based on CUE.

Specifically with regards to the April 1985 decision that assigned a noncompensable rating, the Veteran contends that he should have been granted a separate rating under Diagnostic Code 5257 for instability because it was noted at examination.

In support thereof, the Veteran cites to Lyles v. Shulkin, 29 Vet. App. 107 (2017). Lyles found not that Diagnostic Code 5257 did not overlap with Diagnostic Code 5259 because 5257 pertains to ligaments whereas 5259 pertains to meniscus abnormalities. The evaluation of the same disability under several diagnostic codes (overlapping), known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Given this, adequate reasons and bases would need to explain why separate ratings would not be warranted, rather than a per-se rule that Diagnostic Codes 5257 and 5259 overlap with each other.

Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1984).

Thus, for a compensable rating under Diagnostic Code 5257 the evidence at the time of the
-62 (1994). Given this, adequate reasons and bases would need to explain why separate ratings would not be warranted, rather than a per-se rule that Diagnostic Codes 5257 and 5259 overlap with each other.

Thus, for a compensable rating under Diagnostic Code 5257 the evidence at the time of the 1985 must have shown recurrent (1) subluxation or (2) lateral instability.

At the Veteran's March 1985 VA examination, the Veteran reported that he was put on a "no-run profile" due to his knee about four to six months before discharge. He reported, "my knee is unstable and tends to give way at times." Upon examination, the Veteran's ligaments were stable, without fluid, but the Veteran was unable to fully squat. The clinician assessed "chondromalacia, post-traumatic, left knee."

Given the above, the clinician did not find the Veteran's ligament(s) (Diagnostic Code 5257) were unstable, let alone that there was recurrent instability or effusion. Rather, the clinician attributed any symptoms to "chondromalacia, post-traumatic, left knee." Because such a diagnosis did not have a Diagnostic Code, the April 1985 decision assigned the disability under Diagnostic Code 5299-5259, rating by analogy to the symptomatic removed meniscus the Veteran had been dealing with.

Because the symptomology was analogized under Diagnostic Code 5259, a discussion of the applicability of whether there was separate symptomology under Diagnostic Code 5257 is moot. However, the Board notes (but does not (prejudicially) factually find) that the Veteran had an anterior collateral ligament (ACL) reconstruction in December 1980, in addition to his meniscus surgeries. Thus, the Veteran had a ligamentous injury which was not addressed at the time of the April 1985 decision, to include whether it preexisted service (it did) or was not aggravated by service, to include complaints of instability during service (it was).

Nevertheless, the Board finds the criteria for separate ratings under Diagnostic Codes 5257 and 5259 were not met at the time of the April 1985 decision. Further, the Veteran has not shown the April 1985 decision to contain an error of fact that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Hence, the Veteran's CUE motion is denied.

JMPR considerations

The JMPR found error with the Board's analysis as follows:

Fourth, the Board also overlooked favorable evidence in its CUE analysis related to the April 1985 Decision. The Board found that Appellant had a ligamentous injury at the time of the decision, but it was never addressed whether the injury pre-existed service or was aggravated by service, to include complaints of instability. It thus concluded that there was not an error of fact that compelled a conclusion to which reasonable minds could not differ. But records show that there was no instability in 1981 (April 1985 Rating Decision), while service treatment records from 1982 indicate that there was some instability. STRs (September 30, 1982, STR), (finding of laxity); (July 12, 1982, service treatment record noting complaints of instability); (October 17, 1984, service treatment record noting positive laxity). Remand is therefore warranted for the Board to address this evidence.

To the above point, regardless of whether there was a preexisting condition (ligament injury) and aggravation during service (instability), there also needed to be a current diagnosis or symptomology that reflected such instability. Here, the examiner did not find the Veteran experienced instability at the time of the March 1985 examination. Further, it attributed any such symptomology the Veteran was experiencing at that time to chondromalacia. That the clinician did not specifically consider certain records noting instability during service, which would support instability after service, is essentially an argument that previous adjudication had improperly weighed and evaluated the evidence which can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246.

The Board notes the Veteran's additional contentions in the October
symptomology that reflected such instability. Here, the examiner did not find the Veteran experienced instability at the time of the March 1985 examination. Further, it attributed any such symptomology the Veteran was experiencing at that time to chondromalacia. That the clinician did not specifically consider certain records noting instability during service, which would support instability after service, is essentially an argument that previous adjudication had improperly weighed and evaluated the evidence which can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246.

The Board notes the Veteran's additional contentions in the October 2021 brief attached to his VA Form 10182 as to errors in the April 1985 decision. Namely, that 1) aggravation took place in the form of the 1982 meniscectomy, which led to chondromalacia and 2) that status-post meniscectomy and chondromalacia are separate disabilities which warrant separate ratings. However, the RO did not have a chance to review these arguments in their decision on CUE, thus, the Board is precluded from considering them in the first instance. The Veteran is welcome to file another motion to revise based on CUE and include these arguments should he so desire.

2. Whether the November 2014 decision that assigned a noncompensable rating should be revised based on CUE.

3. Whether the January 2015 decision that assigned a noncompensable rating should be revised based on CUE.

In addition to the assertion that the Veteran's rating was improperly discounted supra, the Veteran contends the November 2014 and January 2015 decisions should be revised because they too did not consider the Veteran's instability symptomology under Diagnostic Code 5257 and assign a separate compensable rating.

Preliminarily, the Board finds the November 2014 and January 2015 decisions did not make any findings on stability. Further, the criteria for compensable ratings for Diagnostic Codes 5257 and 5259 had remained the same since April 1985.

On examination in September 2014, the Veteran reported episodic swelling in his left knee. On examination, slight anterior and posterior instability was found on the left. The clinician found the Veteran had pain, effusion, and stiffness due to his meniscus issues. As for instability, the clinician stated "it would be mere speculation to opine whether the Veteran's left knee instability is caused by his pre-service ACL repair or his service-connected meniscal tear."

A medical opinion is not inadequate merely because it is inconclusive. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) ("An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, an examiner's inability to reach a definitive opinion does not render an opinion inadequate if the examiner explains the reasons for his or her inability to render such opinion without resorting to speculation. Jones v. Shinseki, 23 Vet. App. 382, 390-92 (2010).

Here, the clinician did not provide an adequate rationale. If the claim were still pending, then the adequacy of the examination would allow for a remand or for clarification. However, the claim is final and the Veterans Claims Assistance Act of 2000 (VCAA), which governs the duty to assist, to include adequate examinations, is inapplicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c).

Thus, the Board is left with the evidence of record to determine if the Veteran has instability that is due to his service-connected disability or to another disability. Here, while instability is noted on examination it is not clear to what it is attributable to: his service-connected meniscus condition or his non-service-connected ACL injury. In this regard, the Board finds Mittleider to be invoked. See Mittleider v. West, 11 Vet. App. 181 (
to assist, to include adequate examinations, is inapplicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c).

Thus, the Board is left with the evidence of record to determine if the Veteran has instability that is due to his service-connected disability or to another disability. Here, while instability is noted on examination it is not clear to what it is attributable to: his service-connected meniscus condition or his non-service-connected ACL injury. In this regard, the Board finds Mittleider to be invoked. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability).

However, Mittleider deals with the benefit of the doubt standard under 38 C.F.R. 3.102. The benefit of the doubt provisions do not apply to CUE motions. 38 C.F.R. § 20.1411(a). Rather, the analysis is whether the disability is related to the service-connected disability on a clearly and unmistakable basis.

Here, the Board cannot find the error to be CUE because any error in reviewing the evidence is not "undebatable" nor the sort of error "which, had it not been made, would have manifestly changed the outcome at the time it was made." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

Given the above, the Board finds the criteria for separate ratings under Diagnostic Codes 5257 and 5259 were not met at the time of the November 2014 and January 2015 decisions. Further, the Veteran has not shown the decisions to contain an error of fact that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Hence, the Veteran's CUE motions are denied.

JMPR considerations

The JMPR directed the Board to consider the following

Fifth, as to the November 2014 and January 2015 decisions, the parties agree that a remand is warranted because the Board did not provide an adequate statement of reasons or bases. The Board found that while there is evidence of instability at the time of the November 2014 and January 2015 decisions, it is unclear if it was due to a service-connected meniscus condition or a nonservice-connected ACL injury. The Board then invoked the Court's holding in Mittleider v. West, 11 Vet. App. 181 (1998), which held that when a distinction cannot be made between service-connected and nonservice-connected conditions, the effects shall be attributed to the service-connected disability. The Board then explained that Mittleider dealt with the benefit of the doubt, which cannot be CUE. But the Board did not consider the holding separate from the benefit of the doubt doctrine, which requires the effects to be attributed to a service-connected disability, when they cannot be distinguished between a service-connected and a nonservice-connected disability. In other words, the Board should consider whether his instability could be attributed to his service-connected condition based on the holding in Mittleider, not the benefit of the doubt doctrine. Remand is warranted accordingly.

In sum, the JMPR is directing the Board to consider whether the Veteran's instability is attributable to the service-connected disability.

To this point, the clinician stated "it would be mere speculation to opine whether the Veteran's left knee instability is caused by his pre-service ACL repair or his service-connected meniscal tear." If the condition cannot clearly be attributed to one diagnosis or another, the conclusion suffers the same fate as before. Neither can rise to the strict definition of CUE. Trying to parse out which symptoms are attributable to which diagnosis is reweighing evidence which cannot form the basis for CUE. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246.

Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
Trying to parse out which symptoms are attributable to which diagnosis is reweighing evidence which cannot form the basis for CUE. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246.

Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). The Board has considered the record and has found that staged ratings are not warranted as level of disability has remained approximately the same during the period on appeal.

4. Entitlement to an increased rating for a left knee disability.

5. Entitlement to a separate rating based on left knee instability.

The Veteran contends that his left knee rating should be higher than the 20 percent that is currently assigned. In support thereof, the Veteran contends that the proper rating for his left knee post-TKR is 30 percent, the minimum rating under Diagnostic Code 5055, and should not be discounted due to a pre-existing disability.

By way of history, the Veteran applied for a temporary total evaluation due to his left knee in July 2019. An October 2019 rating decision assigned the temporary rating and a 30 percent rating was implemented effective September 1, 2020. However, a May 2020 rating decision found CUE because the rating should have been 20 percent effective the same date. The Veteran requested HLR of the May 2020 decision in January 2021. An April 2021 rating decision found no error in the May 2020 decision. Thereafter, the Veteran filed a supplemental claim on the post-TKR rating, which was denied in the July 2021 rating decision.

Thus, the Veteran's claim for an increased rating for post-TKR has been continuously pursued and the propriety of the rating since September 1, 2020 is on appeal.

Propriety of the rating off-set

At the outset, the Board must consider whether the RO's conclusory application of 38 C.F.R. §§ 3.322(a) and 4.22 is proper: (without adequate explanation) deducting 10 percent for the pre-existing disability from the rating for the Veteran's post-TKR left knee disability throughout.

As explained in the CUE section above, generally, when service connection for a disability is granted on the basis that the disability pre-existed service, but was aggravated by it, the rating assigned for such disability is derived by deducting from the rating warranted for the present degree of disability the rating, if ascertainable, the degree of such disability existing at entrance into active service. 38 C.F.R. §§ 3.322(a), 4.22; see also Cotant v. Principi, 17 Vet. App
.322(a) and 4.22 is proper: (without adequate explanation) deducting 10 percent for the pre-existing disability from the rating for the Veteran's post-TKR left knee disability throughout.

The Board finds that the general rule providing for deduction for pre-existing disability does not apply at any point because a post-TKR disability is fundamentally different from the Veteran's left knee disability that pre-existed service and must be evaluated under different diagnostic codes. See Williams v. Shinseki, No. 08-1714, 2010 U.S. App. Vet. Claims LEXIS 1192, at *5-7 (Vet. App. June 30, 2010) ("If the preservice injury is rated under a different DC from the present condition, then the reduction of his disability rating due to the pre-service injury may well be improper.").

Here, the Veteran's post-TKR left knee disability is rated under Code 5055, which governs evaluation of a knee disability following implantation of a prosthesis. Application of this Code reflects surgical removal of the pre-existing knee disability, which was rated under Code 5259, for symptomatic removal of semilunar cartilage. See 38 C.F.R. § 4.71a. As his now post-TKR left knee disability is a fundamentally different disability than his pre-service post-meniscectomy disability, the Board finds that deduction of 10 percent for pre-existing disability from the rating warranted for the left knee post-TKR disability is improper. See Williams, 2010 U.S. App. Vet. Claims LEXIS 1192, at *5-7. Accordingly, no deduction to the rating under Diagnostic Code 5055 is warranted.

General Musculoskeletal Criteria

When evaluating musculoskeletal disabilities based on limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Knee rating

Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant Diagnostic Codes for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, lateral instability and recurrent subluxation of the knee, and meniscal disabilities. The Board will explore all possibilities in this case.

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

The Veteran's left knee post-TKR is rated under Diagnostic Code 5055. Under that code, a 100 percent temporary total rating is assigned from the date surgery until a specified date after the surgery. This initial total rating is followed by
the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, lateral instability and recurrent subluxation of the knee, and meniscal disabilities. The Board will explore all possibilities in this case.

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

The Veteran's left knee post-TKR is rated under Diagnostic Code 5055. Under that code, a 100 percent temporary total rating is assigned from the date surgery until a specified date after the surgery. This initial total rating is followed by a minimum rating of 30 percent; or a 60 percent maximum rating will be assigned if there are chronic residuals of severe painful motion or weakness in the affected extremity.

With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262.

VA amended the regulations for rating knee disabilities, to include Diagnostic Code 5055, effective February 7, 2021. However, this change does not impact the Veteran's rating herein.

When the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint (such as the knee) or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, for arthritis. Alternatively, the Board notes that with any form of arthritis, painful motion is an important factor of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Under Diagnostic Code 5260, a 0 percent (noncompensable) disability rating is assigned for flexion limited to 60 degrees, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, a 0 percent (noncompensable) disability rating is assigned for extension limited to 5 degrees. A 10 percent disability rating is assigned for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees. A 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a.

Evidence

Having determined that the rating should not have been reduced and that a 30 percent rating is the minimum rating, the Board will now determine whether a higher rating is warranted.

The Board finds the most probative evidence of record to be the VA examination of record. The examiner has the medical expertise to assess objective limitations from the Veteran's service-connected disability. Thus, the Board gives the VA examinations great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's lay statements are consistent with the findings of the VA examinations.

The only VA examination during the period on appeal (after the temporary total evaluation was lifted) is in June 2021. The Veteran reported current symptoms of pain and stiffness when standing, walking, and sitting. He has sharp pain when he goes down stairs and throbbing pain when trying to go to sleep at night. He also reported swelling and at times his knee feels like it will give way/buckle. He had mild swelling, soreness, and tenderness to the top and bilateral sides of the knee. His range of motion was, at most, limited to 10 degrees extension and 110 degrees flexion. The clinician noted that subluxation or persistent instability was present, but also that the Veteran had surgery to repair his prior ligament tear. No patellar instability was noted.

When specifically considering the criteria for post-TKR, the clinician found the Veteran did not have chronic residuals of severe painful motion or weakness. Rather, he had intermediate degrees of residual weakness, pain, or limitation or motion.

The Board has considered the VA treatment records during the period on appeal. While there
like it will give way/buckle. He had mild swelling, soreness, and tenderness to the top and bilateral sides of the knee. His range of motion was, at most, limited to 10 degrees extension and 110 degrees flexion. The clinician noted that subluxation or persistent instability was present, but also that the Veteran had surgery to repair his prior ligament tear. No patellar instability was noted.

The Board has considered the VA treatment records during the period on appeal. While there are reports of pain and weakness, none of it is characterized as "severe" and the Board does not find the evidence approximates such a level of disability. In a note from June 2021, the Veteran reported "crushing" knee pain, 6/10, made worse with walking, but that he could tolerate the pain. But in April 2021, the Veteran reported he was an "active weightlifter", to include lower leg workouts. In contrast to his left knee, the Veteran reported frequent pain in his right flank for which he sought additional treatment.

Analysis

In order to warrant a higher schedular rating under Diagnostic Code 5055, the Veteran's disability would need to approximate chronic residuals of severe painful motion or weakness. Pain is noted, to include sharp and throbbing pain, but weakness is not noted.

However, the Veteran's disability could receive a higher rating if his range of motion or instability approximated the criteria in Diagnostic Codes 5256, 5261, or 5262. However, in order to warrant a rating in excess of 30 percent under these Diagnostic Codes, the Veteran's range of motion would need to be limited to 20 degrees extension and 15 degrees flexion-far more limited than his range of motion at the June 2021 examination (10 degrees extension and 110 degrees flexion). As for ankylosis under Diagnostic Code 5256, none is noted.

The Veteran generally asserted that the June 2021 examination is adequate because it did not comply with range of motion testing requirements: 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). However, the June 2021 examination has "checkboxes" for these requirements, which were completed to the extent that they were present on examination. Therefore, the Board finds the examination to be adequate in this regard.

The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and limitation of function.

Despite the Veteran's contention of a greater degree of limitation on his knee disabilities, the disability ratings assigned herein indicates a significant impact on his functional ability. Such disability evaluations assigned by VA recognizes his painful motion. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not.

Regarding other potentially applicable ratings, to include the revised criteria of Diagnostic Code 5257, the Board does not find recurrent instability regarding the patellofemoral complex.

Diagnostic Code 5257

The Board has also considered whether a separate rating is warranted under Diagnostic Code 5257 for instability. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg.

Prior to February 7, 2021, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree.

Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found
or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

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

After February 7, 2021, the amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability.

For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

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

At the June 2021 VA examination, the Veteran reported instability and the clinician noted instability, but it is unclear whether the instability was before or after the TKR. No other treatment records noted instability during the period on appeal.

Thus, in giving the Veteran the benefit of the doubt, the Veteran's lay evidence supports slight recurrent subluxation or lateral instability for his left knee post-TKR, but no greater level of disability. The Board would expect to see some complaints of instability in the medical records, even if no stability testing was performed.

As for the post-February 7, 2021, version of Diagnostic Code 5257, the Board finds that a higher rating is not warranted under either set of criteria. For a 20 percent rating, a walker, brace, or cane must be prescribed; however, no such prescription is claimed or evidenced in the file.

Despite the Veteran's contention of a greater degree of limitation on his knee condition, the disability rating assigned herein indicates a significant impact on his functional ability. Such disability evaluations assigned by VA recognize his painful motion. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not.

JMPR Analysis

The JMPR directed the Board to address several errors. The first was with regards to the adequacy of examinations:

"In a January 2021 Notice of Disag
determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and limitation of function.

JMPR Analysis

The JMPR directed the Board to address several errors. The first was with regards to the adequacy of examinations:

"In a January 2021 Notice of Disagreement, Appellant argued that VA examinations from June 2021 and August 2019 failed to properly assess range of motion via testing as required by the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016)."

Preliminarily, the Board notes the Veteran's contention that the examinations "did not comply with [Correia] regarding range of motion testing requirements." Noting that the JMPR did not identify any specific deficiency with these examinations, the Board will address the Veteran's assertions regarding the adequacy of these examinations.

With regards to the August 2019 examination, this was within the one-year period after the TKR-in fact it was only within one month of the surgery. Thus, assuming there was inadequate range of motion testing, it would have little probative value as to the Veteran's functioning of his knee because he was still healing. As for the June 2021 examination, it is addressed supra.

As to the second error identified in the JMPR:

Second, the Board did not address favorable evidence of worsening that potentially favored a compensable left knee rating up to one year before the July 30, 2019, claim for increase...In this case, the RO issued a decision on October 2019 that granted a 100% rating for his total knee replacement, effective July 16, 2019 (the date of surgery). Under 38 C.F.R. § 3.400(o)(2), the effective date of an award may trace back to one year prior, if there is factual evidence of worsening. In this case, the record shows that Appellant first considered a total knee replacement in January 2019, and that he reported increased pain and decreased activity level in February 2019. See R. at 2537 (2535-38, January 14, 2019, VA Physician H&P Note); 2528 (2526-28, February 12, 2019, VA Treatment Record).

According to 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a), (b)(2); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). The Court has held that 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise, the general rule of 38 C.F.R. § 3.400 (o)(1) applies. See Harper, at 126.

Thus, three possible dates may be assigned depending on the facts of the case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2));

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)).

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2));

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)).

Consequently, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). The Court has held that 38 U.S.C. § 5110 (b)(2) specifically links any effective date earlier than the date of application to: (1) evidence that an increase in disability had occurred; and (2) to the receipt of an application within one year after that increase in disability. The application referred to must be an application on the basis of which the increased rating was awarded, because there would be no reason to adjudicate the question of the effective date prior to the award of a rating increase, just as there would be no reason to assign a disability rating on a disability compensation claim until service connection had been awarded.

Prior to July 30, 2019, the Veteran was in receipt of a noncompensable rating for his left knee under Diagnostic Code 5259. As explained in the January 2015 decision, which the Board upheld above, the Veteran would have been in receipt of a 10 percent rating under 5259 for painful residuals of a meniscectomy, but because of a preexisting condition, the Veteran's rating was offset by 10 percent.

Thus, in order for the Veteran to warrant a compensable rating under any of the knee codes prior to July 30, 2019, the Veteran would have to demonstrate (1) symptomology that is separate from that which is considered for his left knee condition and (2) symptomology which would warrant a compensable rating.

In the September 2014 examination, which the Board finds to be the most probative evidence of the Veteran's functioning at the time of the January 2015 decision, the Veteran reported pain, stiffness, swelling, and slight instability. Diagnostic Code 5259 is vague in its description of "symptomatic" removal of semilunar cartilage, with Diagnostic Code 5258 explaining that symptoms include "locking, pain, and effusion" into the joint. Notably, the Diagnostic Codes do not address instability. The Board has defined the levels of instability above and finds that the Veteran's instability continued up until his knee replacement.

The Board has considered whether the Veteran's symptomology under Diagnostic Code 5259 worsened within one year of July 30, 2019. However, the descriptions of the Veteran's symptomology is general and vague such that the Board cannot discern the levels of range of motion lost such that a higher or separate rating under Diagnostic Code 5260 or 5261 might be applicable.

As for Diagnostic Code 5257, the JMPR reflects that the Veteran reported instability in the records within one year of July 30, 2019. These records were received in August 2024, well after the AOJ decision on appeal. However, the Board finds the doctrine of constructive receipt to apply. See Page v. McDonough, 35 Vet. App. 94 (2022) (the Board can also take constructive possession of VA medical records for purposes of determining prejudicial error of not obtaining and associating into the file prior to the Board decision). Prior to the AOJ decision on appeal, a full compliment of VA records was not associated with the file. As the records deal with the Veteran's functioning prior to his knee replacement and the Veteran identified such records on his application, the Board will take possession of them even though they were submitted outside an evidentiary window.

On January 14, 2019, for the first time the Board can identify in the medical records, the Veteran reported using a brace for his knee. Thus, the Board finds that as of that date, a separate 10 percent rating for mild instability of the left knee is warranted. Slight ( 1+ (0-5 millimeters)) anterior and posterior instability is noted at the September 2014 examination with no more probative findings regarding instability noted prior to the July 2019 TKR.

While a portion of the third basis for the JMPR remand was identified, the rest was not:

"As to the increased rating for a left knee disability, the Board failed to
submitted outside an evidentiary window.

While a portion of the third basis for the JMPR remand was identified, the rest was not:

"As to the increased rating for a left knee disability, the Board failed to address evidence of the post-surgery fall and evidence of weakness after his surgery. (June 2021 VA Examination) (October 9, 2019, VA PACT Nurse Same Day Appointment Note). Indeed, Diagnostic Code 5055 contemplates a 60 percent rating if there is severe painful motion or weakness. See 38 C.F.R. § 4.17a."

The fall and weakness pertains to an August 2019 fall, which was less than a month after his surgery. As discussed above, the evidence has little probative value as to the Veteran's functioning of his knee because he was still healing.

Conclusion

For the foregoing reasons, the preponderance of the evidence supports a rating of 30 percent for a left knee post-TKR, but no higher. Further, a separate 10 percent rating under Diagnostic Code 5257 is warranted from January 14, 2019, to July 30, 2019; and since September 1, 2020. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Scott W. Dale

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board I. M. Hitchcock

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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