Case A26039063

MICHAEL A. PAPPAS · 2026 · Case ID: A26039063

MIXED

Summary

The veteran, who served from August 1977 to March 1979, appeals a May 2025 rating decision concerning effective dates for psychological disability and SMC, as well as ratings for right knee conditions. The veteran sought an earlier effective date for a 100 percent rating for persistent depressive disorder with alcohol, cocaine use, and cocaine-induced psychotic disorder, and for SMC based on housebound status. The Board granted an earlier effective date of July 24, 2023, for both, aligning with the date of intent to file, as the claim was continuously pursued after a break in pursuit following a June 2022 decision. The veteran also appealed the denial of a compensable rating for right knee osteoarthritis prior to November 26, 2024, and a rating in excess of 10 percent thereafter. The Board denied these claims, finding that while painful motion was present, the range of motion did not meet the criteria for a higher rating, and the November 2024 claim lacked continuous pursuit. Finally, the veteran appealed the reduction of his right knee instability rating from 20 percent to 10 percent effective January 30, 2025. The Board denied this appeal, finding the reduction warranted due to material improvement demonstrated by a January 2025 VA examination, which showed no prescribed assistive device for ambulation and sufficient range of motion for a 10 percent rating.

Rationale

Effective date granted based on continuous pursuit of claim; Intent to file received July 24, 2023; Claim reintroduced April 13, 2024, within one year of intent to file

Special Benefit

SMC - HOUSEBOUND

Docket No.

251017-597896

Full Decision Text

Citation Nr: A26039063
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 251017-597896
DATE: April 27, 2026

ISSUES

1. Entitlement to an effective date earlier than November 26, 2024 for the award of a 100 percent disability rating for service-connected persistent depressive disorder with alcohol use disorder, cocaine use disorder and cocaine induced psychotic disorder.

2. Entitlement to an effective date earlier than November 26, 2024 for the award of special monthly compensation (SMC) based on housebound criteria.

3. Entitlement to a compensable disability rating for right knee osteoarthritis with degenerative arthritis and painful motion prior to November 26, 2024, and in excess of 10 percent thereafter.

4. Whether the reduction in disability rating from 20 percent to 10 percent disabling for service-connected right knee instability, effective January 30, 2025, was proper.

ORDER

Entitlement to an effective date of July 24, 2023, but no earlier, for the award of a 100 percent disability rating for persistent depressive disorder with alcohol use disorder, cocaine use disorder and cocaine induced psychotic disorder is granted.

Entitlement to an effective date of July 24, 2023, but no earlier, for the award of a SMC based on housebound criteria is granted.

Entitlement to a compensable 10 percent rating for right knee osteoarthritis with degenerative arthritis and painful motion prior to November 26, 2024, is denied.

Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis with degenerative arthritis and painful motion is denied.

Restoration of a 20 percent disability rating for service-connected right knee instability, effective January 30, 2025, is denied.

FINDINGS OF FACT

1. VA received notice of the Veteran's intent to file a claim on July 24, 2023, within one year from receipt of an April 2024 VA 21-526EZ claiming an increased rating for the Veteran's psychological disability. The claim was continuously pursued thereafter.

2. The date entitlement arose is not later than the date of claim.

3. VA received notice of the Veteran's intent to file a claim on July 24, 2023, within one year from receipt of an April 2024 VA 21-526EZ which included an implied SMC based on housebound status claim. The claim was continuously pursued thereafter.

4. On November 26, 2024, VA received a VA 21-526EZ claiming an increased rating for the Veteran's right knee disability. A notice of intent to file that can be associated with this claim was not received within one year prior to that date. This claim did not continue a chain of continuous pursuit for any existing related claim.

5. Forward flexion limited to 30 degrees or less has not been shown in the right knee.

6. The reduction in evaluation from 20 percent to 10 percent for the Veteran's right knee instability was based on material improvement in the Veteran's ability to function under the ordinary conditions of life and work as demonstrated by a complete examination.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date of July 24, 2023, but no earlier, for the award of a 100 percent disability rating for persistent depressive disorder with alcohol use disorder, cocaine use disorder and cocaine induced psychotic disorder have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.2500, 3.400.

2. The criteria for entitlement to an effective date of July 24, 2023, but no earlier, for the award of SMC based on housebound status have been met. 38 U.S.C. §§ 1114, 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.2500, 3.350, 3.400.

3. The criteria for a compensable 10 percent rating for right knee osteoarthritis with degenerative arthritis and painful motion prior to November 26, 2024 have not been met. 38 U.S.C. §§ 1114, 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.2500, 3.350, 3.400.

4. The criteria for a disability rating in excess of 10 percent for right knee osteoarthritis with degenerative arthritis and painful
3.151, 3.155, 3.2500, 3.350, 3.400.

4. The criteria for a disability rating in excess of 10 percent for right knee osteoarthritis with degenerative arthritis and painful motion have not been met. 38 U.S.C. §§ 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71, 4.71a, DC 5003-5260.

5. The criteria for restoration of the 20 percent rating for right knee instability, effective January 30, 2025, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.10, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1977 to March 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2025 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran timely appealed by submitting an October 2025 VA Form 10182 and requested the Hearing docket.

A Board hearing was held on March 3, 2026, a transcript of which has been uploaded to the Veteran's electronic claims file. This was the first of two AMA appeal hearings with the Veteran on that date. Therefore, the Board may only consider the evidence of record at the time of the May 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either: (1) during the period after the AOJ issued the decision and prior to the Board hearing, or; (2) more than 90 days following the hearing, then the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. Significantly at the end of the second hearing, the Veteran stated that he wished to waive the 90-day post-hearing evidentiary window for his appeals before the Board including the instant appeal.

Earlier Effective Dates

The Veteran asserts he is entitled to earlier effective dates for the award of a 100 percent disability rating for his psych disability and the award of SMC based on housebound criteria.

Generally, the effective date of an award shall be fixed in accordance with the facts. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Claimants may also submit an intent to file a claim. 38 C.F.R. § 3.155(b). If VA receives a complete application form for the benefit sought within one year of receipt of an intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. Id.

If a claim is continuously pursued, it will generally be considered filed as of the date the first claim was received in the continuously pursued chain, instead of the date of the most recent request for review. 38 C.F.R. § 3.2500(h)(1). A claim is considered continuously pursued by filing a proper administrative review option within one year of a decision. 38 C.F.R. § 3.2500(c).

The "date entitlement arose" is defined as the date when the claimant met the requirements for the benefit sought. See McGrath v. Gober, 14 Vet. App. 28 (2000). This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a). It is
be considered filed as of the date the first claim was received in the continuously pursued chain, instead of the date of the most recent request for review. 38 C.F.R. § 3.2500(h)(1). A claim is considered continuously pursued by filing a proper administrative review option within one year of a decision. 38 C.F.R. § 3.2500(c).

The "date entitlement arose" is defined as the date when the claimant met the requirements for the benefit sought. See McGrath v. Gober, 14 Vet. App. 28 (2000). This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a). It is the information in evidence, and not the date of the evidence, that is relevant when determining effective date. See Tatum v. Shinseki, 24 Vet. App. 139 (2010). In other words, the determination of when the claimant met the requirements for the benefit sought is bound by what the evidence reflects, not by when evidence is received.

1. Entitlement to an effective date of July 24, 2023, but no earlier, for the award of a 100 percent disability rating for persistent depressive disorder with alcohol use disorder, cocaine use disorder and cocaine induced psychotic disorder is granted.

The Veteran contends that the effective date for his 100 percent disability rating for his psych disability should be the day that he first filed a claim. See March 2026 Hearing Transcript. He states that he did his first rehab in 1990 and continued to work until 1996, but that he already had the same problem at that time. Id. The current effective date is November 26, 2024.

Turning to relevant procedural history, VA received the Veteran's initial VA 21-526EZ claiming service connection for depression on November 28, 2020. The Veteran filed an initial claim of service connection for depression. A May 2021 rating decision granted the claim. Entitlement to an increased rating was continuously pursued until a June 2022 rating decision became final after a year passed without the Veteran filing an appropriate review option. An intent to file letter was received on July 24, 2023 followed by an April 13, 2024 VA 21-526 EZ which, in relevant part, reintroduced the issue of an increased rating for the Veteran's psychological disability. The issue was then continuously pursued until the May 2025 rating decision on appeal which granted an increase to 100 percent disabling.

The effective date should be July 24, 2023, the date notice of intent to file was received. The Veteran has continuously pursued the claim since VA received the April 2024 VA 21-526EZ reopening the claim within one year of receipt of the notice of intent to file. Therefore, the intent to file date attaches as the date of receipt of the claim.

The evidence does not otherwise suggest that the date entitlement arose for the 100 percent disability rating should be later than the date of claim in this case. VA has already conceded this in this case as the original effective date assigned was the date of claim. This decision merely recognizes that the date of claim should be earlier.

The Board acknowledges the Veteran's argument that the effective date should be the date he first filed a claim for his psychological disability. However, the law is clear that the effective date cannot extend to a claim that previously became final without continuous pursuit. In this case, more than a year elapsed after the June 2022 rating decision before the claim was pursued once more which breaks the chain of continuous pursuit. Therefore, the chain of continuous pursuit cannot go further back than the July 24, 2023 date.

In summation, VA received notice of the Veteran's intent to file a claim on July 24, 2023, within one year from receipt of an April 2024 VA 21-526EZ claiming an increased rating for the Veteran's psychological disability. The claim was continuously pursued thereafter. Therefore, the criteria for entitlement to an effective date of July 24, 2023, but no earlier, for the award of a 100 percent disability rating for persistent depressive disorder with alcohol use disorder, cocaine use disorder and cocaine induced psychotic disorder have been met. Consequently, an earlier effective date of July 24, 2023 is granted.

2. Entitlement to an effective date of July 24, 2023, but no earlier, for the award of a SMC based on housebound criteria is granted.

The Veteran asserts he is entitled to an earlier effective date than November 26, 2024, for the award of SMC based on housebound status. He contends that the effective date should be the date he first filed a claim. See March 2025 Hearing Transcript.

The Board reincorporates the
but no earlier, for the award of a 100 percent disability rating for persistent depressive disorder with alcohol use disorder, cocaine use disorder and cocaine induced psychotic disorder have been met. Consequently, an earlier effective date of July 24, 2023 is granted.

2. Entitlement to an effective date of July 24, 2023, but no earlier, for the award of a SMC based on housebound criteria is granted.

The Board reincorporates the procedural history above in noting that this grant of SMC appears to stem from the same procedural chain of claims beginning with the July 24, 2023 notice of intent to file.

A Veteran is statutorily entitled to SMC based on housebound status when they have a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent that are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350.

SMC can also be granted on an alternative facts-found basis, but the Veteran was awarded SMC in this case on the above-mentioned statutory basis. Essentially, the prior effective date was tied to the original November 26, 2024 date of claim discussed in the prior section because the Veteran satisfies the statutory requirements for SMC on whatever date of claim is established due to the ratings assigned to his multiple service-connected disabilities. Therefore, the question is not when the Veteran met the requirements but rather what is the date of claim. The same analysis discussed above as to why July 24, 2023 is the correct date of claim applies for the award of SMC. Therefore, the effective date should be July 24, 2023.

However, the same reasoning also applies regarding why the effective date cannot be earlier than July 24, 2023. There is no active claim, meaning a claim that does not have a final decision, within a year prior to that date which could extend the chain of continuous pursuit further back. Therefore, the effective date cannot be prior to July 24, 2023.

In summation, the Board finds that VA received notice of the Veteran's intent to file a claim on July 24, 2023, within one year from receipt of an April 2024 VA 21-526EZ which included an implied SMC based on housebound status claim. The claim was continuously pursued thereafter. Therefore, the criteria for entitlement to an effective date of July 24, 2023, but no earlier, for the award of SMC based on housebound status have been met. Consequently, an effective date of July 24, 2023, but no earlier, is granted.

3. Entitlement to a compensable 10 percent rating for right knee osteoarthritis with degenerative arthritis and painful motion prior to November 26, 2024, is denied.

4. Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis with degenerative arthritis and painful motion is denied.

The Veteran asserts he is entitled to a compensable rating for his right knee osteoarthritis prior to November 26, 2024 and in excess of 10 percent thereafter.

Incorporating the discussion above regarding effective dates, the Board notes that the present claim for an increased rating for the right knee comes from a VA 21-526EZ received November 26, 2024. There is no notice of intent to file that can be associated with his claim in the one-year period preceding receipt of the November 2024 claim.

In addition to the general earlier effective date rules discussed above, when a claim for an increased disability rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred on a date within that time frame. See 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605, F.3d 979 (2010). However, it is not factually ascertainable that the increase in disability occurred on any specific date in the one-year period preceding receipt of the claim.

Based on the foregoing the Veteran is not entitled to a compensable rating prior to November 26, 2024. However, the question of whether he is entitled to a rating in excess of 10 percent remains.

The disability at issue is rated under
date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred on a date within that time frame. See 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605, F.3d 979 (2010). However, it is not factually ascertainable that the increase in disability occurred on any specific date in the one-year period preceding receipt of the claim.

Based on the foregoing the Veteran is not entitled to a compensable rating prior to November 26, 2024. However, the question of whether he is entitled to a rating in excess of 10 percent remains.

The disability at issue is rated under diagnostic codes 5003-5260 for musculoskeletal disabilities contained in 38 C.F.R. § 4.71a.

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); also see Mitchell v. Shinseki, 25 Vet. App. 32 (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 (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 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, 38 C.F.R. § 4.59 provides that 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.

Additionally, a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259 (1994). See also VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2004). The rationale is that limitation of flexion and limitation of extension are two distinct impediments, i.e., the symptomatology upon which the separate ratings would be based is not duplicative or overlapping.

VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability. VAOPGCPREC 23-97 (July 1, 1997). VA's Office of the General Counsel (OGC) opined that it was not pyramiding to assign ratings under DC 5257 (knee instability) and DC 5260/61 based on additional disability as the two diagnostic codes addressed different manifestations or symptoms.

Normal range of motion in the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.

DC 5003 provides that degenerative arthritis
ative or overlapping.

Normal range of motion in the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.

DC 5003 provides that degenerative arthritis, other than post-traumatic will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5003 also provides that if limitation of motion results in a noncompensable rating, a minimum rating of 10 percent is required.

DC 5260 provides for a noncompensable rating where flexion is limited to 60 degrees. A 10 percent rating is warranted with flexion limited to 45 degrees. A 20 percent rating is warranted with flexion limited to 30 degrees. Lastly, a maximum 30 percent rating is warranted with flexion limited to 15 degrees. At the most recent January 2025 examination, the VA examiner recorded forward flexion of 100 degrees on active motion, and estimated forward flexion of 90 degrees during flare-ups or after repeated use over time. See January 2025 C&P Exam. The examiner noted painful motion on everything but passive motion and noted no additional loss of function or range of motion after three repetitions. This examination complied with DeLuca, Correia, and Sharp in that it inquired about and estimated functional loss during flare-ups, considered pain on movement, and considered all required categories of motion.

The range of motion depicted in the January 2025 C&P Exam does not meet the criteria for a 20 percent rating. There is no other evidence of record which identifies range of motion that does otherwise meet the criteria.

The Board acknowledges the reported painful motion, which is why the Veteran meets the requirements for a 10 percent disability rating under DC 5003 as it is required at a minimum for painful motion. However, a higher rating would require demonstrated limited range of motion as is contemplated by the rating criteria. Painful motion alone is not sufficient for a higher rating.

In summation, On November 26, 2024, VA received a VA 21-526EZ claiming an increased rating for the Veteran's right knee disability. A notice of intent to file that can be associated with this claim was not received within one year prior to that date. This claim did not continue a chain of continuous pursuit for any existing related claim. Forward flexion limited to 30 degrees or less has not been shown in the right knee. Therefore, the criteria for a compensable 10 percent rating for right knee osteoarthritis with degenerative arthritis and painful motion prior to November 26, 2024 have not been met. In addition, the criteria for a disability rating in excess of 10 percent for right knee osteoarthritis with degenerative arthritis and painful motion have not been met either. Consequently entitlement to a compensable rating prior to November 26, 2024 and entitlement to a rating in excess of 10 percent are denied.

5. Restoration of a 20 percent disability rating for service-connected right knee instability, effective January 30, 2025, is denied.

The Veteran contends that the reduction in disability rating from 20 percent to 10 percent effective January 30, 2025 for his right knee instability was improper.

The Veteran was granted service connection for his right knee instability at 10 percent disabling effective July 25, 2005. The rating was later increased to 20 percent effective November 6, 2018. The May 2025 rating decision on appeal reduced the rating to 10 percent effective January 30, 2025.

Relevant to reductions, the Board notes that where a rating reduction results in a decreased level of overall compensation or discontinuance of compensation paid to a veteran, VA must follow the procedural safeguards in 38 C.F.R. § 3.105(e). Here, the reduction did not decrease the level of overall compensation paid to the Veteran. Therefore, the requirements of 38 C.F.R. § 3.105(e) are not applicable

The 20 percent rating prior to the reduction was in effect for more than five years. A rating at the same level for more than five years may only be reduced if there is demonstrated evidence of sustained material improvement as shown by complete examinations. 38 C.F.R. § 3.344(a), (
reductions, the Board notes that where a rating reduction results in a decreased level of overall compensation or discontinuance of compensation paid to a veteran, VA must follow the procedural safeguards in 38 C.F.R. § 3.105(e). Here, the reduction did not decrease the level of overall compensation paid to the Veteran. Therefore, the requirements of 38 C.F.R. § 3.105(e) are not applicable

The 20 percent rating prior to the reduction was in effect for more than five years. A rating at the same level for more than five years may only be reduced if there is demonstrated evidence of sustained material improvement as shown by complete examinations. 38 C.F.R. § 3.344(a), (b). To warrant a reduction, it must be determined not only that an improvement has actually occurred, but also that such improvement reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993). The Board bears the burden to establish that rating a reduction is warranted. Id

The Veteran's knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. Under DC 5257, a 10 percent disability rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. 38 C.F.R. § 4.71a. A 20 percent disability rating is warranted for either (1) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or; (2) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation. Id.

The reduction appears to be based on a January 30, 2025 VA examination which noted that the Veteran has recurrent subluxation or persistent instability, but is not prescribed an assistive device for ambulation. See January 2025 C&P Exam. Such improvement not only means the requirements for a 20 percent evaluation are not met, but also indicate sustained material improvement and an improvement in the ability to function under the under conditions of life and work. No longer requiring use of an assistive device is both material, and improves the ability to function. Therefore, the reduction is warranted.

In summation, the reduction in evaluation from 20 percent to 10 percent for the Veteran's right knee instability was based on material improvement in the Veteran's ability to function under the ordinary conditions of life and work as demonstrated by a complete examination. Therefore, the criteria for restoration of the 20 percent rating for right knee instability, effective January 30, 2025, have not been met. Consequently, restoration of the 20 percent rating is denied.

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. J.

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

Analyze in VA Law Explorer