SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

MARTIN B. PETERS · 2026 · Case ID: A26039159

MIXED

Summary

The Veteran served from October 1988 to October 1997. This case involves appeals from February and October 2024 rating decisions concerning service connection for obstructive sleep apnea (OSA), degenerative arthritis of the cervical spine, bilateral knee disorders, left upper extremity radiculopathy, and entitlement to Total Disability based on Individual Unemployability (TDIU). The Veteran claimed OSA secondary to several service-connected conditions, including cervical spine arthritis and lumbar disc disease. The Board granted service connection for OSA secondary to these conditions, finding the criteria met. The Board also granted service connection for left upper extremity radiculopathy secondary to cervical spine arthritis. Regarding the cervical spine degenerative arthritis, the Board found the Veteran was entitled to a 30 percent rating, effective January 1, 2025, and also found the prior reduction to 20 percent improper, restoring the 30 percent rating retroactively from March 13, 2018. The Board granted separate 10 percent ratings for mild instability in both the left and right knees. However, claims for increased ratings for knee strains and earlier effective dates for knee disorders were denied. The case was remanded for further development regarding the cervical spine arthritis to determine if ankylosis is present and for bilateral knee instability to assess the degree of instability. Additionally, the Board took jurisdiction over and remanded a claim for headaches secondary to cervical spine arthritis. The Veteran was granted TDIU effective March 13, 2018, based on his service-connected disabilities.

Rationale

Criteria for secondary service connection met.; Obesity as intermediate step.; Secondary to multiple service-connected conditions.

Special Benefit

TDIU

Docket No.

250205-520241

Full Decision Text

Citation Nr: A26039159
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 250205-520241
DATE: April 27, 2026

ORDER

Service connection for obstructive sleep apnea (OSA), secondary to the Veteran's degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, left ankle disorder, and bilateral pes cavus, is granted.

Restoration of a 30 percent evaluation for degenerative arthritis of the cervical spine, effective January 1, 2025, is granted.

Beginning March 13, 2018, a 30 percent evaluation for degenerative arthritis of the cervical spine is granted.

Service connection for left upper extremity radiculopathy of the upper radicular group is granted.

An effective date prior to September 27, 2021, for the award of service connection for a left knee disorder is denied.

An effective date prior to September 27, 2021, for the award of service connection for a right knee disorder is denied.

An initial rating in excess of 10 percent for a left knee strain with limitation of flexion is denied.

An initial rating in excess of 10 percent for a right knee strain with limitation of flexion is denied.

An initial compensable rating for a left knee strain with limitation of extension is denied.

An initial compensable rating for a right knee strain with limitation of extension is denied.

An initial separate 10 percent rating for left knee instability is granted.

An initial separate 10 percent rating for right knee instability is granted.

A total rating based on individual unemployability (TDIU) due to the Veteran's service-connected lumbar disc disease, degenerative arthritis of the cervical spine, tinnitus, bilateral pes cavus, right lower extremity radiculopathy, residuals of a left ankle concussion, and bilateral hearing loss, effective March 13, 2018, is granted.

REMANDED

Entitlement to a rating in excess of 30 percent for degenerative arthritis of the cervical spine is remanded.

Entitlement to a rating in excess of 10 percent for left knee instability is remanded.

Entitlement to a rating in excess of 10 percent for right knee instability is remanded.

Entitlement to service connection for a headache disorder is remanded.

FINDINGS OF FACT

1. The Veteran's obstructive sleep apnea is secondary to his degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, left ankle disorder, and bilateral pes cavus, by way of obesity as an intermediate step.

2. At the time of the reduction in the October 2024 rating decision, the 30 percent rating for the Veteran's service-connected degenerative arthritis of the cervical spine had been in effect for less than five years.

3. The Agency of Original Jurisdiction's (AOJ's) reduction of a 30 percent evaluation to 20 percent for the Veteran's service-connected degenerative arthritis of the cervical spine was not based on improvement that was reasonably certain to be maintained under the ordinary conditions of work and life.

4. The Veteran's service-connected degenerative arthritis of the cervical spine manifests as painful motion with forward flexion of the cervical spine of 15 degrees or less.

5. The Veteran's left upper extremity radiculopathy is secondary to his degenerative arthritis of the cervical spine.

6. In a final decision issued in April 1998, the AOJ denied service connection for bilateral knee disorders

7. In a final decision issued in July 2018, the AOJ denied reopening of the issue of service connection for a left knee disorder.

8. A January 2022 rating decision granted service connection for bilateral knee strains and established an effective date of September 27, 2021.

9. The Veteran did not file a timely appeal of the portions of the January 2022 rating decision which established service connection for bilateral knee disorders, effective September 27, 2021.

10. Throughout the period on appeal, the Veteran's left knee range of motion was limited, at most, to a flexion endpoint of 80 degrees and an extension endpoint of 5 degrees.

11. Throughout the period on appeal, the Veteran's right knee range of motion was limited, at most, to a flexion endpoint of 100 degrees and an extension endpoint of 5 degrees.

12. The Veteran's left knee strain manifests as mild instability.

13. The Veteran's right knee strain manifests as mild instability.

14. The Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected lumbar disc disease, degenerative arthritis of
effective September 27, 2021.

10. Throughout the period on appeal, the Veteran's left knee range of motion was limited, at most, to a flexion endpoint of 80 degrees and an extension endpoint of 5 degrees.

11. Throughout the period on appeal, the Veteran's right knee range of motion was limited, at most, to a flexion endpoint of 100 degrees and an extension endpoint of 5 degrees.

12. The Veteran's left knee strain manifests as mild instability.

13. The Veteran's right knee strain manifests as mild instability.

14. The Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected lumbar disc disease, degenerative arthritis of the cervical spine, tinnitus, bilateral pes cavus, right lower extremity radiculopathy, residuals of a left ankle concussion, and bilateral hearing loss.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for obstructive sleep apnea, secondary to the Veteran's service-connected degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, residuals of a left ankle concussion, and bilateral pes cavus, by way of obesity as an intermediate step, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The reduction of the Veteran's rating for his service-connected degenerative arthritis of the cervical spine from 30 percent to 20 percent was not proper; the criteria for restoration of the 30 percent evaluation, effective January 1, 2025, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344.

3. Throughout the period on appeal, the criteria for an evaluation of 30 percent for degenerative arthritis of the cervical spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5242.

4. The criteria for entitlement to service connection for left upper extremity radiculopathy, secondary to the Veteran's service-connected degenerative arthritis of the cervical spine, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

5. The criteria for an effective date prior to September 27, 2021 for the award of service connection for a left knee disorder are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

6. The criteria for an effective date prior to September 27, 2021 for the award of service connection for a right knee disorder are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

7. The criteria for entitlement to an evaluation in excess of 10 percent for a left knee strain with limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.71a, DC 5260.

8. The criteria for entitlement to an evaluation in excess of 10 percent for a right knee strain with limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.71a, DC 5260.

9. The criteria for entitlement to a compensable evaluation for a left knee strain with limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.71a, DC 5261.

10. The criteria for entitlement to a compensable evaluation for a right knee strain with limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.71a,
extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.71a, DC 5261.

11. The criteria for a separate 10 percent evaluation for left knee mild instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257.

12. The criteria for a separate 10 percent evaluation for right knee mild instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257.

13. The criteria for a TDIU are met, effective March 13, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from October 1988 to October 1997.

This case comes before the Board of Veterans' Appeals (Board) from July 2024 and October 2024 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), hereinafter the Agency of Original Jurisdiction (AOJ). In February 2025 the Veteran submitted a timely Board Appeal: Notice of Disagreement (NOD), VA Form 10182, identifying issues decided in those decisions, and electing the Evidence Submission docket.

Because the Veteran elected the Evidence Submission docket, the Board may only consider the evidence of record at the time of the notification of the AOJ decision on appeal (July 22, 2024 for the issues of service connection for obstructive sleep apnea, entitlement to earlier effective dates for service connection for bilateral knee disorders, increased evaluations for degenerative arthritis of the cervical spine and bilateral knee disorders, and entitlement to a TDIU; and October 11, 2024 for the propriety of a rating reduction for the Veteran's degenerative arthritis of the cervical spine), as well as any evidence submitted by the Veteran with and within 90 days of receipt of the instant VA Form 10182 in this case (February 5, 2025 through May 6, 2025). 38 C.F.R. § 20.303. The Board cannot consider (1) evidence submitted during the period after the AOJ promulgated and issued the decision on appeal and before receipt of the VA Form 10182 (July 22, 2024 through February 4, 2025 for the issues of service connection for obstructive sleep apnea, entitlement to earlier effective dates for service connection for bilateral knees, increased evaluations for a degenerative arthritis of the cervical spine and bilateral knee strains, and entitlement to a TDIU; and October 11, 2024 through February 4, 2025 for the propriety of a rating reduction for the Veteran's cervical spine, or (2) evidence submitted more than 90 days after receipt of the VA Form 10182 (on or after May 7, 2025). Id. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300.

With regard to the any denied claims, if the Veteran wishes VA to consider any evidence that falls into any period that the Board may not consider in this case, the Veteran may file a Supplemental Claim within one year of the Board's decision and submit or identify this evidence for review. 38 C.F.R. § 3.2501. Specific instructions for filing a Supplemental Claim are included with this decision.

For any remanded issues, any evidence that is not considered by the Board at this time will be considered by the AOJ upon readjudication of this claim
during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300.

For any remanded issues, any evidence that is not considered by the Board at this time will be considered by the AOJ upon readjudication of this claim.

Service Connection for Obstructive Sleep Apnea

The Veteran contends that his obstructive sleep apnea is related to his military service. Specifically, he contends that his service-connected degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, residuals of a left ankle concussion, and bilateral pes cavus caused his obesity, which in turn caused his sleep apnea.

As an initial matter, the July 2024 rating decision made the favorable findings that the Veteran had submitted new and relevant evidence to readjudicate the issue of service connection for obstructive sleep apnea and that he has a diagnosis of sleep apnea. The Board is bound by these findings absent clear and unmistakable error, which is not present. See 38 C.F.R. § 3.104(c).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability results from the service-connected disability. 38 U.S.C. §§ 1110, 1131; Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (holding that section 1110 "requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability").

The Veteran has not claimed service connection for obesity. Rather, he asserts that his obesity is an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). In that decision it was noted that, under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected and that "proximate cause" had been defined by Black's Law Dictionary, 213 (7th ed. 1999), as a "cause that directly produces an event and without which the event would not have occurred." As such, VA must resolve: (1) whether a service-connected disability caused a Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability.

The Board notes that recently, in Adams v. Collins, 38 Vet. App. 273 (2025), the Court of Appeals for Veterans Claims (Court) upheld VAOPGCPREC 1-17 insofar as it found that obesity could not be a "disability" for VA purposes under 38 C.F.R. § 3.303; the Court, however, overturned VAOPGCPREC 1-17's holdings regarding whether obesity could be a current disability for service connection purposes under 38 C.F.R. § 3.310. However, as the Veteran has not claimed service connection
; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability.

The Board notes that recently, in Adams v. Collins, 38 Vet. App. 273 (2025), the Court of Appeals for Veterans Claims (Court) upheld VAOPGCPREC 1-17 insofar as it found that obesity could not be a "disability" for VA purposes under 38 C.F.R. § 3.303; the Court, however, overturned VAOPGCPREC 1-17's holdings regarding whether obesity could be a current disability for service connection purposes under 38 C.F.R. § 3.310. However, as the Veteran has not claimed service connection for obesity as a disability, the Board will not address that issue.

There is a non-exhaustive list of considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step. Garner v. Tran, 33 Vet. App. 241 (2021). These include: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); (2) reduced physical activity or inability to follow a course of exercise or diet as a result of a service-connected mental disability; (3) side effects of medication (e.g., weight gain), where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. Id. at 248

The evidence of record documents that the Veteran has multiple service-connected disorders, including degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, a residuals of a left ankle concussion, and bilateral pes cavus. The final issue is whether there is sufficient evidence to show that the Veteran's obstructive sleep apnea results from these service-connected disorders.

An April 2024 VA medical opinion states that the Veteran's obstructive sleep apnea was not directly related to his military service and was not caused by a toxic risk exposure activity. The examiner also noted the Veteran's obesity as a risk factor for OSA. However, the examiner did not address a possible relationship between the Veteran's service-connected disabilities and his obesity. Thus, the Board finds that this opinion is insufficient to fully adjudicate the issue of service connection for OSA. See El Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record).

A January 2025 private medical opinion linked the Veteran's obesity with his service-connected degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, residuals of a left ankle concussion, and bilateral pes cavus. In doing so, the examiner reviewed the Veteran's service-connected disorders, including impaired sleep due to chronic pain, alcohol consumption to manage pain, disrupted sleep due to pain, and the functional impairment of these disorders on his ability to ambulate for a prolonged period and engage in prolonged weightbearing. The examiner ultimately opined that:

weight gain during service which continued post service caused the development of his sleep apnea. In addition, I find that his chronic pain from his service-connected lumbar disc disease; radiculopathy right leg involving sciatic nerve; bilateral pes cavus; history of left ankle concussion; degenerative arthritis of the cervical spine; bilateral knee strain and radiculopathy left leg involving sciatic nerve, including his long-term use of alcohol to treat his pain, have resulted in chronic poor sleep cycles, low motivation, exercise intolerance, and obesity, which in turn have resulted in the development of his sleep apnea.

VA treatment records note that the Veteran used to bicycle and walk regularly throughout the day, but that his pain levels and decreased functionality inhibited his ability to perform these activities. See, e.g. September 2023 consult note.

After reviewing the evidence of record, the Board finds that the evidence is in a state of approximate balance regarding whether the Veteran's obstructive sleep apnea is related to his service-connected degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, residuals of a left ankle concussion, and bilateral pes cavus. Therefore, resolving doubt in the Veteran's favor, service connection for obstructive sleep apnea, secondary to degenerative arthritis of the cervical spine, lumbar disc disease, bilateral lower extremity radiculopathy, bilateral knee strains, residuals of a left ankle concussion, and bilateral pes cavus, is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Propriety of Rating Reductions

The October 2024 rating decision on appeal reduced the evaluation of the Veteran's degenerative arthritis of the cervical spine from 30 percent to 20 percent, effective January 1, 2025. The Veteran contends that this reduction is unwarranted.

The regulations pertaining to the reduction of disability evaluations contain their own notification and due process requirements. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which the 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e).

In this case, the July 2024 rating decision proposed to reduce the Veteran's disability evaluation for degenerative arthritis of the cervical spine from 30 percent to 20 percent. The notification of this proposed reduction was sent to the Veteran's last known address. The Board notes that the Veteran's address was updated the day after the notification letter was mailed and that the notification letter was later returned as undeliverable. However, the Veteran's attorney submitted a timely response to the notification letter. The October 2024 rating decision decreased the Veteran's disability evaluation from 30 percent to 20 percent, effective January 1, 2025.

Given the foregoing, the Board finds that the procedural requirement for the reductions were satisfied. 38 C.F.R. § 3.105(e). Moreover, given the restoration of benefits herein, any potential prejudice to the Veteran is moot.

Moving to the substantive requirements of a rating reduction, Congress has provided that a veteran's disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Court of Appeals for Veterans Claims (Court) has discussed principles applicable in all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Specifically, the Court held that in order to effectuate a rating reduction, VA must ascertain: (1) whether, based upon a review of the entire recorded history of the condition, the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement in the disability actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown,
of the rating level or the length of time that the rating has been in effect. Specifically, the Court held that in order to effectuate a rating reduction, VA must ascertain: (1) whether, based upon a review of the entire recorded history of the condition, the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement in the disability actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320 (1995); see also Hedgepeth v. Wilkie, 30 Vet. App. 318, 323-24 (2018).

Where a disability rating has been in effect less than 5 years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. See 38 C.F.R. § 3.344(c). For ratings in effect for 5 years or more, there are other specific requirements that must be met. See 38 C.F.R. § 3.344(a), (b). 38 C.F.R. § 3.344(a) provides that VA examinations that are less full and complete than those on which the payments were authorized or continued will not be used as a basis of reduction. Further, under 38 C.F.R. § 3.344(a), even if material improvement is clearly reflected in the record, VA is to consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.

Lastly, the Court has also held that though a rating reduction may have been supported by the evidence on file at the time of the reduction, the Board must consider pertinent post-reduction evidence favorable to restoring the rating. See Dofflemyer, supra.

After reviewing the evidence, the Board finds that the October 2024 rating reduction for the Veteran's degenerative arthritis of the cervical spine was improper. Specifically, the Board finds that the October 2024 rating decision relied upon a VA examination that did not demonstrate an actual improvement in ability to function under the ordinary conditions of life and work.

With respect to the rating reduction, the record shows that the AOJ reduced the rating at issue predominately because a May 2024 VA medical examination showed the Veteran had improved range of motion in his cervical spine. Specifically, the RO found the examination indicated the Veteran exhibited forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees.

The May 2024 examination report indicates that the Veteran does not experience flare-ups of the cervical spine. However, previous VA examinations document flare-ups several times per month or during cold or rainy weather. See April 2018 VA medical examination, August 2023 VA medical examination, November 2023 VA medical examination. Such a discrepancy is not explained by the May 2024 examiner, nor otherwise discussed by the AOJ in their decision. Thus, it appears that the May 2024 examination is not as thorough (as full and complete) as previous examinations, and therefore, any implicit finding of improvement (as the AOJ failed to otherwise explicitly find such improvement in the ordinary conditions of work and life, as required by 38 C.F.R. § 3.344) is predicated on an incomplete examination.

Thus, the Board finds that there is insufficient evidence that the Veteran's level of disability improved under the ordinary conditions of work and life. Accordingly, the rating reduction from 30 percent to 20 percent for the Veteran's degenerative arthritis of the cervical spine, effective January 1, 2025, was improper, and the 30 percent evaluation for degenerative arthritis of the cervical spine is restored, effective January 1, 2025. See 38 C.F.R. § 3.344(c); Murphy, 26 Vet. App. at 517; Brown, 5 Vet. App. at 421; Dofflemyer, 2 Vet. App. at 277 (holding that where VA has reduced a veteran's disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required).

Effective Date of Service Connection for Bilateral Knee Strains

The Veteran's February 2025 VA Form 1082 asserts, generally, that an earlier effective date of service connection for bilateral knee strains is warranted. The Board notes that the Veteran currently has four separate disability ratings for his knees: bilateral knee strains rated under DC 5260 (limitation of flexion), with an effective date of service connection of September 27, 202
; Brown, 5 Vet. App. at 421; Dofflemyer, 2 Vet. App. at 277 (holding that where VA has reduced a veteran's disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required).

Effective Date of Service Connection for Bilateral Knee Strains

The Veteran's February 2025 VA Form 1082 asserts, generally, that an earlier effective date of service connection for bilateral knee strains is warranted. The Board notes that the Veteran currently has four separate disability ratings for his knees: bilateral knee strains rated under DC 5260 (limitation of flexion), with an effective date of service connection of September 27, 2021 and bilateral knee strains rated under DC 5261 (limitation of extension) with an effective date of service connection of January 26, 2024. Entitlement to increased initial evaluations for these disorders will be addressed in a separate section of this opinion.

Except as otherwise provided, the effective date of a claim for service connection based on an initial claim shall be the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim for service connection is received within one year of a veteran's discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The term "date entitlement arose" is not expressly defined. However, it has been interpreted as the date when the claimant met the requirements for the benefit sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a) (2012); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These "facts found" may include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See 38 C.F.R. § 3.400.

An exception exists where a claim has been continuously pursued under the Appeals Modernization Act (AMA). See 38 C.F.R. § 3.2500(c), (h)(1). Under the AMA, a claim is continuously pursued if a claimant timely files in succession any of the available review options specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of a decision. Id. If a supplemental claim is received more than one year after the date on which the AOJ or the Board issues a notice of a decision, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the date of receipt of the supplemental claim. Id., § 3.2500(h)(2).

Prior to March 24, 2015, a "claim" was defined as "formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p). An informal claim included "[a]ny communication or action, indicating an intent to apply for one or more benefits..." 38 C.F.R. § 3.155(a). Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The essential elements of such an informal claim are (1) an intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).

The communication of a claim, whether formal or informal, must be in writing. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that an informal claim must be written because "[t]o permit an oral statement to constitute the filing of an informal claim would create serious problems in the operation of the veterans benefits programs." See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).

VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the particular claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014); 38 C.F.R. § 3.155. The amendments are only effective for claims and appeals filed on or after March 24, 2015.

Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). Under the Legacy appeal system, the exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b).

New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Historically, an April 1998 rating decision denied service connection for bilateral knee disorders. The basis of this denial was that there was no medical evidence of a permanent residual or chronic disability. Within the appeal period of that decision, a service treatment record was associated with the claims file, but this record does not contain any indication of any chronic knee disorder. The Board finds that this submission is not material and thus the Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52, 20.1103.

The Veteran filed a new claim for service connection for a left knee disorder in April 2018. A July 2018 rating decision denied service connection for a left knee disorder, finding that the Veteran had not submitted new and material evidence and that "The evidence from veteran submitted in connection with the current claim does not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim." This decision further stated "We received your medical evidence which discusses the symptoms of your medical condition. We did not find a link between your current medical condition and military service." The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52, 20.1103.

The Veteran submitted a supplemental claim in October 2021 seeking service connection for bilateral knee disorders. A January 2022 rating decision granted service connection for bilateral knee strains pursuant to DC 5260 and established initial, separate 10 percent evaluations, effective September 27, 2021 - the date VA received the Veteran's intent to file a claim for disability. In December 2022, the Veteran requested higher-level review of the January 2022 rating decision.

A March 2023 higher-level review rating decision, in part, denied an effective date of service connection for bilateral knee disorders prior to September 27, 2021.

The Veteran filed a supplemental claim in January 2024 seeking increased ratings for his bilateral
3.

A March 2023 higher-level review rating decision, in part, denied an effective date of service connection for bilateral knee disorders prior to September 27, 2021.

The Veteran filed a supplemental claim in January 2024 seeking increased ratings for his bilateral knee disorders. There is no reference in this claim to an earlier effective date of service connection. In the July 2024 rating decision on appeal, the AOJ denied an effective date of service connection prior to September 27, 2021 for the Veteran's bilateral knee disorders. This decision also granted separate evaluations for the Veteran's bilateral knees pursuant to DC 5261. The effective date of these grants was January 26, 2024.

After conducting a thorough review of the record, the Board observes that while the Veteran first submitted a claim for service connection for bilateral knee disorders in October 1997, service connection was denied in an April 1998 decision which became final. Thereafter, the July 2018 rating decision declined to reopen the issue of service connection for a left knee disorder. This decision also became final. Finally, the Veteran did not file a timely appeal of the January 2022 rating decision which established the effective date of service connection for his bilateral knee disorders. Thus, this claim is essentially a freestanding earlier effective date claim, which is not permissible. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision).

In any event, based on the above noted timely, it appears that the earliest possible effective date for service connection for bilateral knee disorders-September 27, 2021-has already been assigned. The Veteran has not otherwise indicated any basis or argument for an effective date of service connection for bilateral knee disorders prior to September 27, 2021; nor does he otherwise indicate any effective date that he believes that he is entitled to. Likewise, the Veteran's attorney has not submitted any argument in support of an earlier effective date of service connection. Accordingly, based on the record as it stands, the Board finds that an effective date of service connection for bilateral knee disorders prior to September 27, 2021, is not warranted by the evidence of record at this time. 38 C.F.R. § 3.400.

As the most probative evidence of record persuasively weighs against the claim for an effective date prior to September 27, 2021 for the award of service connection for bilateral knee strains, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-782 (Fed. Cir. 2021).

Increased Disability Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider 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. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14.

Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

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

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

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.

Degenerative Arthritis of
. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

Degenerative Arthritis of the Cervical Spine

The Veteran contends that an increased evaluation for degenerative arthritis of the cervical spine is warranted, effective March 13, 2018, which is the initial date of claim for service connection for a cervical spine disorder.

Historically, on March 13, 2018 the Veteran submitted a VA Form 21-526EZ seeking service connection for a neck disorder. An April 2018 rating decision denied service connection for degeneration of a cervical intervertebral disc. The Veteran filed a timely Board appeal. An April 2022 Board decision granted service connection for a cervical spine disability. An April 2022 rating decision implemented the Board's grant of service connection and established an initial 20 percent evaluation, effective March 13, 2018. In March 2023, the Veteran requested higher-level review of the April 2022 rating decision. A June 2023 Decision Review Officer decision identified a duty to assist error and transferred the issue of an increased initial evaluation and earlier effective date of service connection to the supplemental claim lane. A November 2023 supplemental decision increased the Veteran's disability evaluation for degenerative arthritis of the cervical spine to 30 percent, effective August 3, 2023. A December 2023 supplemental rating decision confirmed and continued the 30 percent evaluation and denied an earlier effective date of service connection. In January 2024, the Veteran filed a supplemental claim application seeking an increased evaluation for degenerative arthritis of the cervical spine. After development of this claim, the AOJ issued the July 2024 and October 2024 rating decisions on appeal.

Given the foregoing, the period on appeal for an increased evaluation begins on March 13, 2018, the date of service connection for degenerative arthritis of the cervical spine. See 38 C.F.R. § 3.2500, Fenderson, supra

For spine disabilities evaluated under DCs 5235 to 5242, the Rating Schedule directs the utilization of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, a 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate DC. Id., Note (1).

Unfavorable ankylosis is defined by VA regulation as when the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to
.71a, General Rating Formula.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate DC. Id., Note (1).

Effective February 7, 2021, VA amended its regulations governing musculoskeletal disabilities. The General Rating Formula did not undergo substantive changes in this revision.

Turning to the evidence of record, during an April 2018 VA medical examination the Veteran reported constant neck pain that he rated 6/10. The Veteran also reported flare-ups of cervical spine pain when it is cold or damp. Upon initial range of motion testing and observed repetitive use, the Veteran had forward flexion of the cervical spine to 30 degrees. The examiner noted that he was unable to say if pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time or during flare-ups without resorting to speculation. The examiner stated that the Veteran's degenerative arthritis of the cervical spine did not cause guarding or muscle spasm. In discussing additional factors contributing to disability, the examiner stated "less movement than normal due to ankylosis, adhesions, etc..." The Veteran had full muscle strength, no muscle atrophy, and normal reflexes and senses. The examiner stated that there was no ankylosis and did not reconcile this finding with the earlier note that ankylosis contributed to the Veteran's disability. The examiner opined that the overall functional impact of the Veteran's cervical spine disability is that it impacts his ability to look up, turn his head from side to side, and can cause headaches. The Board finds that this medical examination is inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (an examiner's finding that he or she could not offer an opinion without resorting to speculation regarding additional functional loss during flare-ups of a musculoskeletal disability could be adequate if: (1) the record is clear that the examiner has "considered all procurable and assembled data" before stating that an opinion cannot be reached; and (2) the examiner explains the basis for his or her conclusion that a non-speculative opinion cannot be offered).

During an August 2023 VA medical examination, the Veteran reported that he had difficulty doing his job as an auto mechanic due to limitation in neck movement and pain. On a bad day, the Veteran stated that he does not get out of bed or has to use a towel to assist him with movement. The Veteran further reported that bad days occur 7-8 times per month. The examiner noted numbness in the ulnar aspect of the forearm to the left fourth and fifth finger. Initial range of motion testing was 10 degrees of forward flexion. After repeated use over time, the examiner estimated that the Veteran's forward flexion would be 5 degrees. During flare-ups, the examiner estimated that his forward flexion would be 0 degrees. The Veteran had full muscle strength, no muscle atrophy, and normal reflexes and senses. No ankylosis or IVDS was noted. The examiner indicated that there were no signs or symptoms of radiculopathy, but did not address the prior notation of numbness in the left arm and hand.

A February 2024 VA medical examination diagnosed the Veteran with cervical radiculopathy. The Veteran reported flare-ups that occur daily and last 3-6 hours per day. The examiner noted that these flare-ups were severe. The Veteran stated that his activities of daily living were impacted by his limited range of motion. On testing, forward flexion was 30 degrees on both initial testing and after three repetitions. The examiner estimated that there would be no additional loss of range of motion after repeated use over time or during flare-ups. No evidence was cited in support of these estimates. The examination report documents reduced muscle strength testing, normal reflexes, and decreased sensations in both upper extremities. No muscle atrophy was noted. The examiner determined that the Veteran had moderate left upper extremity intermittent pain, paresthesias and/or dysesthesias, and numbness due to upper left radicular group involvement. No ankylosis or
flare-ups were severe. The Veteran stated that his activities of daily living were impacted by his limited range of motion. On testing, forward flexion was 30 degrees on both initial testing and after three repetitions. The examiner estimated that there would be no additional loss of range of motion after repeated use over time or during flare-ups. No evidence was cited in support of these estimates. The examination report documents reduced muscle strength testing, normal reflexes, and decreased sensations in both upper extremities. No muscle atrophy was noted. The examiner determined that the Veteran had moderate left upper extremity intermittent pain, paresthesias and/or dysesthesias, and numbness due to upper left radicular group involvement. No ankylosis or IVDS was noted. While the Board does not find this examination inadequate, it does find that it has minimal probative value as the examiner did not provide any rationale for the conclusion that the Veteran's range of motion would be 30 degrees during flare-ups, especially in light of the examination several months prior showing markedly less range of motion.

A May 2024 VA examination stated that the Veteran did not experience flare-ups of his degenerative arthritis of the cervical spine. The initial range of motion was 35 degrees of forward flexion with no further loss after three repetitions. The examiner estimated that after repeated use over time, the forward flexion would be 30 degrees. Muscle strength testing, reflex testing, and sensation were normal. No radicular pain or other signs of symptoms of radiculopathy were noted. There was no noted ankylosis or IVDS. As noted above, this examination is inadequate as it failed to consider the Veteran's repeated reports of daily flare-ups. See D'Aries, supra, Nieves-Rodriguez, supra.

During a February 2024 statement, the Veteran reported:

I have constant pain in my neck which affects my mobility and range of motion. It's painful for me to turn my head side to side or up and down. My head is tilted to the left and it was mentioned often to me while I was marching in the service. They were always telling me to straighten my head. When I'm looking down for a long period of time to pay bills Or go through paperwork, the pain increases. Doing household tasks is difficult as well. Washing the dishes hurts my neck and back. The pain in my neck radiates down into my arms and hands which affects my strength and grip. I've not felt my left pinky in years due to numbness. I used to be a good guitarist, but I'm no longer able to adapt my fingers into the position of certain cords like "G" or "F." This pain affects how much I'm able to lift and carry, so I honestly don't pick up much anymore. I get my groceries from curbside pickup, and my son takes them in from the car for me. My son helps me with a lot of tasks around the house and he's only twelve, so it puts stress on him. I'm pretty ambidextrous when it comes to working on things because of the work I used to do, but my hands don't work together like they used to. Holding anything while my arms are outstretched is very painful and difficult. This hurts my neck and back. If I'm trying to wash the dishes, the headache will last longer than if I'm sitting the majority of the day The headaches cause me to feel nauseous, lightheaded and they affect my vision causing floaters and blurry vision.

Given the foregoing and after affording the Veteran the benefit of the doubt, the Board finds that throughout the period on appeal his forward flexion was limited to 0 degrees during flare-ups. As such, the Board finds that a rating of 30 percent is warranted, effective March 13, 2018.

The Board further finds that a separate rating for left upper extremity radiculopathy of the upper radicular group, secondary to the Veteran's degenerative arthritis of the cervical spine, is warranted. Notably, numbness and in the left upper extremity were identified in both the August 2023 and February 2024 VA examinations and the February 2024 VA examiner found that these symptoms were due to cervical radiculopathy.

To avoid prejudice to the Veteran, the Board will allow AOJ to assign an effective date and initial disability evaluation for left upper extremity radiculopathy in the first instance. If the Veteran disagrees with the AOJ decision, he may file a request for review on the appropriate VA-promulgated form.

Bilateral Knee Disorders

As an initial note, the Veteran does not contend that he has a meniscal disorder or other disorder related to the semilunar cartilage. Likewise, there is no evidence in the claims file of such a disorder. As such, the provisions of
August 2023 and February 2024 VA examinations and the February 2024 VA examiner found that these symptoms were due to cervical radiculopathy.

Bilateral Knee Disorders

Thus, in rating knee disabilities, separate ratings for the Veteran's knee disabilities are possible for: (1) limitation of flexion; (2) limitation of extension; and (3) recurrent subluxation or instability. VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63, 604 (1997)); Lyles v. Shulkin, 29 Vet. App. 107, 115-16 (2017).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110.

The rating criteria for limitation of flexion of the knee is found at 38 C.F.R. § 4.71a, DCs 5260. This DC provides that flexion of either leg that is limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71a, Plate II. This DC did not have any substantive changes during the 2021 revision.

The rating criteria for limitation of extension of the knee is found at 38 C.F.R. § 4.71a, DCs 5261. This provision provides that a noncompensable rating is warranted for extension limited to 5 degrees, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Prior to February 7, 2021 revision to DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2020). The rating criteria provides no definition for "slight," "moderate," or "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. For reference and illustrative purposes, the Board notes that Merriam-Webster dictionary defines "slight" as small of its kind or in amount; "moderate" as tending toward the mean or average amount or dimension; and "severe" is "of a great degree." See https://www. merriam-webster.com/dictionary/slight; www.mer
4.71a, DC 5257 (2020). The rating criteria provides no definition for "slight," "moderate," or "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. For reference and illustrative purposes, the Board notes that Merriam-Webster dictionary defines "slight" as small of its kind or in amount; "moderate" as tending toward the mean or average amount or dimension; and "severe" is "of a great degree." See https://www. merriam-webster.com/dictionary/slight; www.merriam-webster.com/dictionary/ moderate; www.merriam-webster.com/dictionary/severe.

After February 7, 2021, the criteria for DC 5257 provides that a 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane, crutch, walker) or bracing for ambulation; a 20 percent rating is assigned for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace or assistive device (e.g., cane, crutch, walker) for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane, crutch, walker) or bracing for ambulation; and a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane, crutch, walker) and bracing for ambulation. See 82 Fed. Reg. 76453 (Nov. 30, 2020); 38 C.F.R. § 4.71a, DC 5257.

Under the new criteria, a rating may also be assigned for patellar instability. For patellar instability, a 10 percent rating is assigned 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 assigned 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; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) following the criteria provides, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) following the criteria provides a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See 38 C.F.R. § 4.71a, DC 5257 (2022).

DC 5258 provides a 20 percent rating for semilunar, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. This DC did not have any substantive changes during the 2021 revision.

As noted above, a January 2022 rating decision granted service connection for bilateral knee disorders and established the initial disability evaluations of 10 percent pursuant to DC 5260, which pertains to limitation of flexion. The Veteran filed a request for higher-level review in December 2022 and a March 2023 rating decision confirmed and continued the initial 10 percent evaluations. The Veteran filed a supplemental claim in January 2024 and the July 2024 rating decision on appeal granted separate noncompensable evaluations for the Veteran's bilateral knee strains pursuant to DC 5261, which addresses limitation of extension. Accordingly, the period on appeal for this initial rating claim is from the grant of service connection-September 27, 2021. See 38 C.F.R. § 3.400(o).

Turning to the evidence of record, a January 2022 VA medical examination report states that the Veteran does not
ains to limitation of flexion. The Veteran filed a request for higher-level review in December 2022 and a March 2023 rating decision confirmed and continued the initial 10 percent evaluations. The Veteran filed a supplemental claim in January 2024 and the July 2024 rating decision on appeal granted separate noncompensable evaluations for the Veteran's bilateral knee strains pursuant to DC 5261, which addresses limitation of extension. Accordingly, the period on appeal for this initial rating claim is from the grant of service connection-September 27, 2021. See 38 C.F.R. § 3.400(o).

Turning to the evidence of record, a January 2022 VA medical examination report states that the Veteran does not have flare-ups in either knee, but that he does have pain in both knees all of the time. The Veteran stated that his left knee was more painful than the right. There was no noted history of instability, recurrent subluxation, or frequent effusion. For the right knee, initial range of motion testing was flexion endpoint of 100 degrees and extension endpoint of 0 degrees with pain on flexion. There was no additional loss of range of motion after three repetitions and no estimated additional loss of range of motion after repeated use over time or during flare-ups. For the Veteran's left knee, the initial range of motion was a flexion endpoint of 80 degrees and an extension endpoint of 0 degrees with pain on flexion. There was no additional loss of range of motion after three repetitions and no estimated additional loss of range of motion after repeated use over time or during flare-ups. The examiner did not note any additional factors contributing to disability. There was no muscle atrophy and no ankylosis in either knee. There were no noted meniscal disorders or knee surgeries. The examiner noted the regular use of a brace on the left knee, but not on the right. There is no indication of whether joint stability testing was performed.

A March 2024 VA medical examination noted that the Veteran had severe pain and underwent a nerve block in July 2023. The Veteran reported flare-ups manifesting as severe sharp pain. The examiner determined that these flare-ups were moderate in severity. The Veteran also reported "fluid on knee." Initial range of motion testing showed bilateral flexion endpoints of 140 degrees and bilateral extension endpoints of 0 degrees with pain on both flexion and extension. There was no additional loss of motion on passive range of motion testing or after repetitive use testing. The examiner estimated that there would be no additional loss of range of motion after repeated use over time or during flare-ups. Additional factors contributing to disability were disturbance of locomotion, less movement than normal, and 4/5 muscle strength. There was no muscle atrophy or ankylosis. In one section, the examiner stated that there was no recurrent subluxation, persistent instability, or ligament tear or sprain. In a subsequent section, the examiner noted that the Veteran had bilateral patellar instability. There is no indication of whether joint stability testing was performed. The examiner noted a need for a prescribed knee brace for both the right and the left knee, but in a later section stated that there was no need for a prescribed brace.

A May 2024 VA medical examination reports notes no functional loss, no history of instability or recurrent subluxation, and no history of effusion of the knee. Initial range of motion testing in the right knee was a flexion endpoint of 110 degrees and an extension endpoint of 0 degrees with pain on flexion. The left knee range of motion was a flexion endpoint of 100 degrees and an extension endpoint of 0 degrees with pain on flexion. There was no additional loss of range of motion with passive range of motion testing or after observed repetitive use. The examiner estimated that after repetitive use over time, the right knee flexion endpoint would be 105 degrees with an extension endpoint of 5 degrees. For the left knee, the flexion endpoint would be 95 degrees with an extension endpoint of 5 degrees. No estimate of range of motion during flare-ups was given. There were no additional factors contributing to disability. There was no noted muscle atrophy, ankylosis, recurrent subluxation or persistent instability, or ligament tears. No assistive devices were noted.

VA treatment records provide relevant information about the Veteran's bilateral knee disorders, including documenting bilateral crepitus and pain with movement in all directions. See, e.g. June 2023 note. These records also document that the Veteran has been prescribed a both a left and a right knee brace, See, e.g. February 2018 treatment note, June 2023 treatment note. This includes a left knee patella stabilizer. See November 2017 note. The Veteran regularly uses a cane for ambulation. See, e.g. July
contributing to disability. There was no noted muscle atrophy, ankylosis, recurrent subluxation or persistent instability, or ligament tears. No assistive devices were noted.

During a February 2024 VA visit, the Veteran reported that he was falling about once per week. See February 2024 note. The Veteran also stated that he felt that his right knee was unstable. See June 2023 note.

The Veteran underwent a left knee genicular nerve block in January 2023 that ameliorated some of his pain. Id.

VA treatment records also note a history of left knee swelling. See, e.g. June 2023 outpatient note. A September 2020 x-ray of the Veteran's right knee notes "questionable joint effusion."

In a February 2024 statement, the Veteran reported:

I'm only able to walk the length of the condo before I need to sit and rest. I have a chair on the front porch so I can rest before going into the house. The other day, I lost all feeling in my legs and my knees gave out. I would have fallen if my son hadn't caught me. . . . I have swelling in my knees as well. The left leg swells up to the size of a basketball whenever I do anything. I no longer walk downstairs because my knees give out on me. I have some control going up the stairs, but I can't go down them.

Considering the evidence in its entirety, the Board finds that an evaluation in excess of 10 percent for limitation of flexion pursuant to DC 5260 is not warranted for either the left or the right knee. Notably, there is no evidence showing limitation of flexion of 30 degrees or less. Rather, the VA examinations document a limitation of flexion in the left knee of 140 degrees at best and 80 degrees at worst and a limitation of flexion in the right knee of 140 degrees at best and 100 degrees at worst. Even considering the Veteran's lay reports and acknowledging functional loss due to pain and flare-ups, the degree of additional limitation reflected by the Veteran's statements would not result in limitation of motion more nearly approximating limitation to 30 degrees or less. Thus, ratings in excess of 10 percent are not warranted.

The Board further finds that compensable ratings for limitation of extension, pursuant to DC 5261, are not warranted. At worst, both the Veteran's left knee and right were limited to 5 degrees of extension, which warrants noncompensable evaluations. The Board has considered whether the Veteran is entitled to a compensable evaluations for limitation of extension under DC 5261 pursuant to 38 C.F.R. § 4.59. However, while the Veteran experiences painful motion on extension, a separate compensable evaluations for painful motion under 38 C.F.R. § 4.59 is not for application and would be impermissible pyramiding. See Petitti v. McDonald, 27 Vet. App. 415 (2015) (holding section 4.59 does not stand alone but instead works as a bridge with the limitation-of-motion diagnostic codes when a compensable rating under those diagnostic codes is not warranted).

Finally, the Board finds that separate 10 percent evaluations are warranted for the Veteran's bilateral knee instability under the pre-amendment criteria of DC 5257. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board highlights that the Veteran has a diagnosis of osteoarthritis of the bilateral knees and has been prescribed bilateral knee braces. The Veteran has stated that he experiences bilateral knee instability and VA treatment records also note a history of falls and instability in his knees. Entitlement to a rating decision in excess of 10 percent will be addressed in the remand section of this opinion.

In so reaching the above conclusion, the Board has appropriately applied the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th
, 30 Vet. App. 347, 352-53 (2018). The Board highlights that the Veteran has a diagnosis of osteoarthritis of the bilateral knees and has been prescribed bilateral knee braces. The Veteran has stated that he experiences bilateral knee instability and VA treatment records also note a history of falls and instability in his knees. Entitlement to a rating decision in excess of 10 percent will be addressed in the remand section of this opinion.

In so reaching the above conclusion, the Board has appropriately applied the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

TDIU

The Veteran contends that a TDIU is warranted.

A TDIU may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). See Rice v. Shinseki, 22 Vet. App. 447, 452 (noting that, while "the rating schedule is based on the 'average impairment in earning capacity caused by a disability,'... entitlement to TDIU is based on an individual's particular circumstance").

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" to include two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity).

In short, an award of a TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran submitted a VA Form 21-8940 in January 2024 and the July 2024 rating decision on appeal denied entitlement to a TDIU. Regardless, the period on appeal for the TDIU begins March 13, 2018, the date of service connection for the Veteran's degenerative arthritis of the cervical spine, as that is the earliest increased rating
.3d 1378, 1385 (Fed. Cir. 2001). Rather, the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran submitted a VA Form 21-8940 in January 2024 and the July 2024 rating decision on appeal denied entitlement to a TDIU. Regardless, the period on appeal for the TDIU begins March 13, 2018, the date of service connection for the Veteran's degenerative arthritis of the cervical spine, as that is the earliest increased rating claim on appeal. See Phillips v. McDonough, 37 Vet. App. 394 (2024); see also Fenderson, 12 Vet. App. at 126.

With the increased disability evaluations herein, throughout the period on appeal, the Veteran's service-connected disabilities were: major depressive disorder rated at 70 percent, effective December 5, 2022; lumbar disc disease rated at 20 percent; degenerative arthritis of the cervical spine rated at 30 percent; tinnitus rated at 10 percent; bilateral pes cavus rated as noncompensable between October 5, 1997 and July 18, 2017 and 10 percent thereafter; right lower extremity radiculopathy rated at 10 percent; left lower extremity radiculopathy rated at 10 percent effective September 11, 2020; residuals of a left ankle concussion rated as noncompensable between October 5, 1997 and June 13, 2021 and 10 percent thereafter; bilateral hearing loss rated as noncompensable between April 16, 2015 and June 13, 2021 and 10 percent thereafter; a right knee strain (limitation of flexion) rated at 10 percent, effective September 27, 2021; a left knee strain (limitation of flexion) rated at 10 percent, effective September 27, 2021; left knee instability rated at 10 percent, effective September 27, 2021; right knee instability rated at 10 percent, effective September 27, 2021; and noncompensable evaluations for degenerative arthritis of the left big toe, scar of the low back, and bilateral knee strains with limitation of extension. The Veteran' now service-connected obstructive sleep apnea and left upper extremity radiculopathy is not yet rated.

His combined disability evaluations, after implementation of the foregoing increased disability ratings and restorations, will be: 60 percent between March 13. 2018 and June 13, 2021; 70 percent between June 14, 2021 and September 26, 2021; 80 percent between September 27, 2021 and December 4, 2022, and 90 percent thereafter. Notably, again, these combined evaluations do not contemplate the Veteran's obstructive sleep apnea and left upper extremity radiculopathy, which have not yet been rated by the AOJ.

The Veteran has an associate's degree and a certification as an automotive mechanic. He worked for a number of years as an automotive mechanic and master automotive technician. He also worked for a period of time assembling bicycles. In a December 2021 statement, the Veteran reported that he did not work steadily between February 2014 and November 2017, but was enrolled in a return to work program that was not successful.

VA examinations document work impairments for the Veteran's degenerative arthritis of the cervical spine, including having to tilt his neck to the side and back in order to view portions of vehicles. See, e.g. April 2018 VA examination. Work limitations due to the Veteran's lumbar spine disorder, including having to rely on a rolling walker, were noted in other VA examinations. See, e.g. October 2019 VA examination; July 2021 VA examination. The Veteran's bilateral pes cavus also impacts his ability to stand or walk for long periods of time. See August 2021 VA examination.

The Veteran previously applied for VA Vocational Rehabilitation and Employment benefits. In August 2017, the Veteran was notified that a vocational rehabilitation counselor "made a determination that it is not feasible for you to benefit from a program designed to return you to gainful employment."

An August 2017 Narrative Report considered the Veteran's then service-connected disabilities of degenerative arthritis of the spine, tinnitus, sciatic nerve paralysis, residuals of a left ankle concussion, hearing loss, and bilateral pes cavus. The Report concluded that:

Veteran has not overcome the effects of the impairment through suitable stable employment. The Veteran
bilateral pes cavus also impacts his ability to stand or walk for long periods of time. See August 2021 VA examination.

Veteran has not overcome the effects of the impairment through suitable stable employment. The Veteran is currently employed in an unsuitable job that is exacerbating their Service Connected Disabilities and the qualifications that they currently have acquired do not prepare them for suitable employment that does not irritate or aggravate their disabilities. This hardship is due to no fault of their own and the Veteran does not have the education to qualify themselves for suitable stable and gainful employment. The Veteran currently does not possess marketable skills for direct employment. The Veteran lacks any current education and experience for direct employment in a field that is not contraindicated to their disabilities. Veteran service connection disabilities preclude them from obtaining, maintaining, and sustaining employment in the workforce.

The Report ultimately found:

Feasibility of the vocational goal in currently determined not feasible at this time due to the severity of the Veterans disabilities. An infeasibility determination has been made and the Veteran will be provided an Independent Living assessment in order to identify the Veteran medical needs for ADLs. This determination was made based on the medical evidence provided.

The Veteran appealed this determination and a December 2017 decision upheld the denial of VR&E benefits.

A January 2025 private medical opinion states:

Based on my review of the medical records and consultation with [the Veteran], and my understanding of the limitations associated with his service-connected lumbar disc disease; radiculopathy right leg involving sciatic nerve; bilateral pes cavus and left ankle concussion, I find that he would be unable to stand for 10 minutes without needing to lean on something because his back, feet, right lower extremity and left ankle would hurt too much. He would only be able to walk for 10 minutes, slowly and assisted with a cane or walker, due to his back, feet, right lower extremity and left ankle pain, weakness and instability. He could sit for a total of 30 minutes at a time, depending on the chair, but he would be uncomfortable for a lot of that time due to back, feet, right lower extremity, and left ankle pain and stiffness. As a result, he would need to be able to alternate between sitting and standing, as well as sitting and laying down, frequently to alleviate pain, and this would impact pace and productivity. He would be unable to lift or carry more than 10 pounds due to the strain the additional weight would put on his back, right lower extremity and left ankle. He requires the use of a cane due to his back and right lower extremity pain and would be limited in his ability to hold and carry objects while standing or walking because at least one hand would be needed to hold onto the assistive device. Since he stopped working, his conditions have only continued to progress and worsen.

Regarding non-exertional limitations, [the Veteran] often has difficulty concentrating and staying focused. Due to his constant pain, he often has difficulty concentrating and staying focused. Due to his pain, and tinnitus, he sleeps poorly at night, further degrading his ability to maintain focus, patience, and mental acuity. Additionally, his hearing loss and tinnitus would make working in a physical environment dangerous given his difficulty hearing, but it would also impair his ability to communicate with others both in person and over the phone. Finally, he takes Gabapentin and Methocarbamol for treatment and management of his service-connected conditions and notes that he has difficulties concentrating and staying awake.

Due to these issues, [the Veteran] would be required to miss work or leave early three or more days per month due to the pain and limitations from his back, feet, right lower extremity, tinnitus and hearing loss. He would need more than one additional break per day aside from normally scheduled morning, lunch, and afternoon breaks so he could lie down, recline, stretch, etc. And for more than three days per month, he would not be able to stay focused for at least 7 hours of an 8-hour workday due to, constant pain, extra needed breaks that would take him away from his work at a moment's notice, and Gabapentin and Methocarbamol medication side effects. All of these issues are inconsistent with an ability to sustain even sedentary employment,
or leave early three or more days per month due to the pain and limitations from his back, feet, right lower extremity, tinnitus and hearing loss. He would need more than one additional break per day aside from normally scheduled morning, lunch, and afternoon breaks so he could lie down, recline, stretch, etc. And for more than three days per month, he would not be able to stay focused for at least 7 hours of an 8-hour workday due to, constant pain, extra needed breaks that would take him away from his work at a moment's notice, and Gabapentin and Methocarbamol medication side effects. All of these issues are inconsistent with an ability to sustain even sedentary employment, which at the very least requires a person to be able to attend work reliably, sustain a steady pace and concentration, and work productively. [The Veteran's] service-connected conditions would prevent him from meeting any of these demands, and this would not be tolerated by an employer.

I further find that the veteran's service-connected degenerative arthritis of the cervical spine, bilateral

knee strain and left lower extremity radiculopathy would only exacerbate his inability to work by causing additional limitations in terms of his ability to concentrate, stay alert, attend work reliably, and work productively.

Given the foregoing, the Board finds that beginning March 13, 2018, the Veteran's lumbar disc disease, degenerative arthritis of the cervical spine, tinnitus, bilateral pes cavus, right lower extremity radiculopathy, residuals of a left ankle concussion, and bilateral hearing loss rendered him unable to obtain and maintain gainful employment. As such, the Board finds that a TDIU is warranted March 13, 2018. See 38 C.F.R. § 4.16(a).

REASONS FOR REMAND

Rating in Excess of 30 Percent for Degenerative Arthritis of the Cervical Spine

Both the April 2018 VA medical examination and the Veteran's testimony have raised the possibility that he experiences either actual ankylosis of the cervical spine or the functional equivalent thereof. However, the evidence of record is insufficient to determine if ankylosis is present. As such, the Board finds that a clarification opinion is necessary to adjudicate whether a rating in excess of 30 percent for the Veteran's degenerative arthritis of the cervical spine is warranted.

This remand is required to cure pre-decisional duty to assist errors.

Rating in Excess of 10 Percent for Bilateral Knee Instability

While the evidence of record demonstrates that the Veteran's bilateral knee strains manifest with at least mild instability, there is insufficient evidence in the record to determine if there is moderate or severe instability which might warrant a rating in excess of 10 percent. Notably, there is no evidence that joint stability testing or medical inquiry into the Veteran's bilateral knee instability has been conducted. As such, further development by the AOJ is required prior to fully adjudicating this issue.

This remand is required to cure pre-decisional duty to assist errors.

Secondary Service Connection for Headaches

Consistent with VA's duty to maximize benefits, the Board must consider all possible schedular bases for separate ratings, including secondary service connection. See Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018). In this regard, CAVC has held that under 38 C.F.R. § 3.155(d)(2), a formal claim for secondary service connection need not be filed when entitlement to secondary service connection is raised by the record; rather, VA must consider those "complications" in connection with the claim on appeal. See Bailey v. Wilkie, 33 Vet. App. 188 (2021).

As such, the Board finds that a claim for service connection for a headaches disorder, secondary to degenerative arthritis of the cervical spine, is within the scope of this appeal and has taken jurisdiction of that issue. A VA examination for this disorder has not been afforded to the Veteran. A remand is therefore necessary to properly develop and adjudicate this claim as articulated by CAVC's holdings in Morgan and Bailey. 38 C.F.R. § 20.802(a).

This remand is required to statutory or regulatory duty that has a reasonable possibility of substantiating the Veteran's claim. See 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

1. Obtain an addendum
such, the Board finds that a claim for service connection for a headaches disorder, secondary to degenerative arthritis of the cervical spine, is within the scope of this appeal and has taken jurisdiction of that issue. A VA examination for this disorder has not been afforded to the Veteran. A remand is therefore necessary to properly develop and adjudicate this claim as articulated by CAVC's holdings in Morgan and Bailey. 38 C.F.R. § 20.802(a).

This remand is required to statutory or regulatory duty that has a reasonable possibility of substantiating the Veteran's claim. See 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

1. Obtain an addendum opinion to determine whether the Veteran's degenerative arthritis of the cervical spine manifests as ankylosis or the functional equivalent of ankylosis. The examiner should consider the VA disability evaluations of record as well as the Veteran's statements about the limitations of movement in his neck, including the evidence that he has 0 degrees of motion of the neck during flare-ups. In addressing this, the examiner is to provide any opinion based on discounting any of the ameliorative effects of treatment/medications. The examiner must provide a complete rationale for any opinion rendered.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral knee instability. The entire claims file, including a copy of this remand, must be made available to the examiner for review. All indicated tests and studies should be performed and the results reported in detail.

The examiner should provide a full description of the Veteran's bilateral knee instability and report all signs and symptoms necessary for evaluating the Veteran's bilateral knee instability under the rating criteria.

The examiner must address the conflicting medical evidence regarding both the presence and severity of the Veteran's bilateral knee instability. In this regard, the examiner should ascertain, to the best of their ability, the severity of the Veteran's bilateral knee instability throughout the period on appeal (i.e., September 27, 2021).

The examiner must address the Veteran's statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset.

The examiner must provide a complete rationale for any opinion rendered.

3. Schedule the Veteran for an examination with an appropriate clinician in order to determine whether any headache disorder is related to his degenerative arthritis of the cervical spine. The claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail.

During the examination, the examiner must obtain an extensive and detailed medical history of any headache disorder, including onset of symptoms and the medical course of those symptoms.

Thereafter, the examiner must then opine whether any headache disorder is (a) caused by; or (b) aggravated (i.e., worsened) by the Veteran's service-connected disabilities, including degenerative arthritis of the cervical spine.

The examiner must address any lay statements regarding onset of the Veteran's symptomatology and the continuity of symptomatology since onset and/or since discharge from service.

All findings should be reported in detail and all opinions must be accompanied by a clear rationale. The examiner is reminded that a separate and distinct opinions with supporting rationale are required for all theories of entitlement addressed, including secondary causation and secondary aggravation.

MARTIN B. PETERS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Stricker, Katherine M.

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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