DEGENERATIVE ARTHRITIS

JONATHAN B. KRAMER · 2026 · Case ID: A26039702

DENIED

Summary

The veteran, who served from December 2010 to August 2012, appeals the denial of increased disability ratings for his left knee. The veteran sought ratings higher than 10 percent for both left knee degenerative arthritis with limitation of flexion and left knee instability. The Board reviewed the evidence, including a January 2023 VA examination, which diagnosed degenerative arthritis and instability. The veteran reported constant pain, swelling, and instability, with weekly flare-ups lasting 20 minutes, and noted using Tylenol, a brace, and a knee sleeve. The VA examination showed flexion limited to 75 degrees during flares and no objective evidence of ligament tears or patellar instability, though it did note a history of recurrent subluxation and persistent instability. The examiner concluded the instability was directly related to the service-connected degenerative arthritis. However, the Board found the evidence did not support ratings higher than 10 percent for either condition. For limitation of flexion, the veteran's flexion was not limited to the 30 degrees required for a 20 percent rating. For instability, while a prior MCL sprain was noted, there was no current prescription for a brace or assistive device required for ambulation, nor was there evidence of patellar instability or unrepaired complete ligament tears meeting higher rating criteria. The Board also addressed the prior remand directive regarding medication, finding the veteran's use of Tylenol did not obscure loss of function beyond what was observed, as no ameliorative effects were reported during flares.

Rationale

Criteria for 20% rating not met as flexion was not limited to 30 degrees.; Worst observed flexion was 75 degrees.; No higher rating warranted under DC 5003-5260.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5003

Docket No.

230517-347006

Full Decision Text

Citation Nr: A26039702
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 230517-347006
DATE: April 28, 2026

ORDER

Entitlement to a disability rating in excess of 10 percent for left knee degenerative arthritis, status post impact fracture, lateral femoral condyle (limitation of flexion) is denied.

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

FINDINGS OF FACT

1. For the entire appeal period, the Veteran's left knee has been manifested by arthritis with painful limitation of motion but is not manifested by flexion limited to at least 30 degrees.

2. For the entire appeal period, the Veterans left knee disability has been manifested by persistent instability following a medial collateral ligament sprain, without a prescription from a medical provider or an assistive device

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10 percent for left knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2,

4.3, 4.6, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5260.

2. The criteria for a disability rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.71a, DC 5257

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 2010 to August 2012, with additional service in the Marine Corps Reserve.

This appeal initially comes before the Board of Veterans' Appeals (Board) on appeal of an April 2023 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ).

The Veteran timely initiated this appeal to the Board by submitting a May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket. 38 C.F.R. § 20.301.

In view of the above, the Board may only consider the evidence of record that the AOJ was permitted to consider at the time it issued the rating decision on appeal (i.e., the evidence of record at the time the AOJ issued the April 2023 rating decision).

This matter was previously before the Board in January 2025, at which time a disability rating in excess of 10 percent for left knee degenerative arthritis, status post impact fracture, lateral femoral condyle (limitation of flexion) was denied, and a separate disability rating of 10 percent, but no higher, for left knee instability granted. The Veteran appealed the January 2025 Board decision to the Court of Appeals for Veterans Claims (CAVC). In a December 2025 Memorandum Decision, the interested parties agreed to a Joint Motion for Partial Remand (JMPR), finding the Board erred by failing to provide an adequate statement reasons or bases to satisfy Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) and Ingram v. Collins, 38 Vet. App. 130, 137-38 (2025).

In January 2026, the Veteran was advised that this appeal had returned to the Board and that he may submit written argument only, as the evidentiary record was closed based on the Veteran's election of the Direct Review docket in his initial appeal.

Evidence, to include VA examinations and VA treatment records, was added to the claims file during a period of time when new evidence was not allowed, the Board has not considered such evidence in this decision. The appellant may file a supplemental claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included along with this decision.

As a final matter, the Board observes that, following the December 2025 JMPR, an April 2026 rating decision issued, deferring the issue of increased evaluation for left knee degenerative arthritis, status post impact fracture of lateral femoral condyle (limitation of flexion) and the issue of increased evaluation for left knee degenerative arthritis, status post impact fracture of lateral femoral condyle (instability), citing to a March 2026 supplemental claim. Additional development was undertaken by the AOJ, to include scheduling a VA examination in April 2026. A rating decision adjudicating these issues has yet to be associated with the record. In the AMA, concurrent election is prohibited (i.e., while adjudication of a specific benefit is pending, the claimant may not file alternative review options to run concurrently). See Terry v. McDonough, 37 Vet. App. 1 (2023); 38 C.F.R. § 3.2500(b). An increased rating claim, on the other hand, is treated as a new claim based on worsening or change in severity, and not a request for review of the rating assigned in the prior decision for an earlier period. Regardless of how the AOJ is treating the disability evaluations for the left knee referenced in the deferred April 2026 rating decision, the issues on appeal before the Board presently must be adjudicated. Critically, the Veteran's appeal of the April 2023 rating decision, followed by the Veteran's appeal of the January 2025 Board decision to the CAVC, occurred prior to submission of the March 2026 supplemental claim and the administrative action taken by the AOJ above. Thus, in accordance with the JMPR directives, the Board must proceed with adjudication of the issues presently on appeal before the Board.

Increased Rating

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where the schedular criteria do not provide for a noncompensable rating, such a rating is assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.

A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

When an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C
1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This standard does not require the evidence to be exactly equal; rather, it includes "scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Special Provisions for Musculoskeletal Disabilities

When evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, 38 C.F.R. § 4.40 recognizes the primary concern is the inability to perform the normal working movements of the body with normal excursion, strength, speed coordination, or endurance. Thus, 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 that may not be reflected upon range of motion (ROM) testing during flare-ups or with repeated use over time. In that regard, the VA must also consider factors such as more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations as well. 38 C.F.R. § 4.45. Nevertheless, even when such factors are present, a separate or higher disability rating is not appropriate based on those factors alone. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Rather, the disability rating assigned is based on the extent to which motion is limited as a result of these factors.

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 United States Court of Appeals for Veterans Claims (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.

1. Entitlement to a disability rating in excess of 10 percent for left knee degenerative arthritis, status post impact fracture, lateral femoral condyle (limitation of flexion).

2. Entitlement to a disability rating in excess of 10 percent for left knee instability.

The Veteran seeks higher rating(s) for his left knee disability. See e.g., January 2023 VA Form 21-526EZ.

2. Entitlement to a disability rating in excess of 10 percent for left knee instability.

The Veteran seeks higher rating(s) for his left knee disability. See e.g., January 2023 VA Form 21-526EZ.

The Board must first address the directive in the December 2025 JMPR. The interested parties agreed that the Board failed to explain to what extent, if any, it relied on the ameliorative effects of medication when denying a higher rating for Appellant's left knee disability and left knee instability, noting that Diagnostic Codes (DCs) 5003-5260 and 5257 under 38 C.F.R. § 4.71a do not mention medication. The interested parties cited the Veteran's use of Tylenol as reported during the January 2023 VA examination and instructed the Board to provide a statement of reasons or bases adequate to satisfy Jones and Ingram.

In Jones v. Shinseki, the Court held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." 26 Vet. App. 56, 63 (2012). In Ingram v. Collins, which was issued in March 2025 after the January 2025 Board decision, the Court held that the Board must discount the beneficial effects of medication used to treat a service-connected disability when the relevant diagnostic code does not specifically contemplate medication use. 38 Vet. App. 130 (2025). Of note, in Ingram, the Veteran took various medications including opioids and over the counter medications and during a VA examination the examiner noted "the veteran's back and ankle flares occur frequently and were alleviated by medications." Id.

Turning to the evidence in the present case, VA treatment records do not reflect medication use (prescription or over the counter) for the Veteran's knee symptoms during the period on appeal. During an in person VA examination in January 2023, when asked about any current treatment medications or surgery for his left knee, the Veteran responded "Tylenol, brace and left knee sleeve." He had reportedly taken muscle relaxers for pain previously, but not for the past two years. The Veteran described his current symptoms as "constant pain 6/10 and swelling and instability." Flareups reportedly occurred once a week and lasted 20 minutes. Alleviating factors during flares were reported as sitting down and massaging his knee.

While the Veteran may take Tylenol for his knee symptoms, the Board finds the evidence of record persuasively weighs against finding any ameliorative, or beneficial, effects from Tylenol. Critically, the Veteran reported "constant pain, swelling and instability." Further, in describing alleviating factors during flareups, use of medication was not reported. Rather, the Veteran indicated he would sit down and massage his knee and that this alleviated his pain. The Board also observes flares would reportedly only last 20 minutes. Based on the foregoing, the evidence of record persuasively weighs against finding that medication (specifically, taking Tylenol) obscured loss of function beyond that which was observed and reported. Simply put, because there are no ameliorative effects of Tylenol reported by the Veteran, there is nothing for the Board to discount in its rating analysis.

Having now addressed the JMR directive, the Board proceeds with the remainder of its analysis, which other than minor supplementation, is essentially as outlined in the January 2025 decision.

Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, Fed. Reg. 76453, 76463 (Nov. 30, 2020). The February 2021 amendment of the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a did not impact those under DC 5003 for degenerative arthritis, DC 5260 for limitation of flexion of the leg, or DC 5261 for limitation of extension of the leg.

The Veteran's left knee disability is presently rated under DC 5003-5260. The use of a hyphenated DC indicates the rating is based on an unlisted disease, injury, or residual condition. 38 C.F.R. § 4.27. The first DC denotes the underlying condition, while the second DC identifies the residual condition on the basis of which the rating is determined. In this instance, DC 5003 indicates the underlying condition is degenerative arthritis, while DC 5260 signifies the most appropriate residual condition is limitation of flexion of the leg. Thus, the applicable rating criteria are the ones prescribed under DC
of flexion of the leg, or DC 5261 for limitation of extension of the leg.

Under DC 5003 for degenerative arthritis, it is to be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a minimum compensable rating of 10 percent is to be assigned for each such major joint or group of minor joints affected by limitation of motion, and that rating is to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating may be assigned if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating may be assigned if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.

Under DC 5260 for limitation of flexion, a noncompensable rating is warranted when there is limitation of flexion to 60 degrees. 38 C.F.R. § 4.71a. A 10 percent rating is warranted when there is limitation of flexion to 45 degrees. A 20 percent rating is warranted when there is limitation of flexion to 30 degrees. A 30 percent rating is warranted when there is limitation of flexion to 15 degrees.

Under DC 5261 for limitation of extension, a noncompensable rating is warranted when there is limitation of extension to 5 degrees. 38 C.F.R. § 4.71a. A 10 percent rating is warranted when there is limitation of extension to 10 degrees. A 20 percent rating is warranted when there is limitation of extension to 15 degrees. A 30 percent rating is warranted when there is limitation of extension to 20 degrees. A 40 percent rating is warranted when there is limitation of extension to 30 degrees. A 50 percent rating is warranted when there is limitation of extension to 45 degrees.

Pursuant to the amended rating criteria, under DC 5257 for other impairment of the knee, a rating may now be assigned based on the presence of recurrent subluxation or instability generally, or patellar instability, both with distinct rating criteria.

For recurrent subluxation or instability generally, under amended DC 5257, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

For patellar instability, under amended DC 5257, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a

prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or
repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.

This claim stems from a January 2023 VA Form 21-526EZ, in which the Veteran sought an increased rating for his left knee disability. Consequently, the period on review before the Board is from January 5, 2023, to the present, with consideration of the one-year lookback period. Gaston, 605 F.3d at 982-83. Further, as in this case, where an increase in the level of a previously service-connected disability is at issue, the primary concern is the present level of disability. Francisco, 7 Vet. App. at 55.

Notwithstanding the foregoing, the Board reiterates that the evidence it may consider in this appeal is limited to that before the AOJ at the time of April 2023 rating decision issued, based on the Veteran's election of the Direct Review docket. 38 C.F.R. § 20.301.

Turning back to the evidence during the period on review, as previously noted, the Veteran attended an in-person VA examination in January 2023. He was diagnosed with left knee degenerative arthritis, status post impact fracture, lateral femoral condyle, as well as left knee instability. The Veteran reported his left knee pain had progressed and worsened, with swelling, instability, and constant pain (six out of 10 on a pain scale). He reported taking Tylenol and using a brace and left knee sleeve. Flareups were described as severe with an inability to walk, occurring once weekly with bending, and standing and lasting approximately 20 minutes. The Veteran endorsed a history of knee instability, reporting he felt his knee buckle and then would fall.

During the January 2023 VA examination, range of motion (ROM) testing showed the Veteran was able to demonstrate flexion to 90 degrees and extension to zero degrees. Contralateral testing of the right knee was not performed, with the joint noted to be "damaged." Repetitive use testing of the left knee showed no additional limitation of motion or function. There was no objective evidence of crepitus or localized tenderness. The Veteran's muscle strength was recorded as normal throughout, without any evidence of muscle atrophy or ankylosis. The VA examiner noted there was evidence of pain with passive and active ROM testing of the left knee. The exam did not take place immediately after repeated use over time or flareups. The VA examiner estimated flexion at 75 degrees and extension at zero degrees would be due to pain in both scenarios.

With respect to joint stability, the VA examiner concluded there was a history of recurrent subluxation or persistent instability. The examiner noted there had been no ligament tears (sprain), no patellar instability and did not require a prescription for an assistive device to use for ambulation. Later in the report, however, the examiner noted the Veteran regularly used a left knee brace and compression sleeve as assistive devices for ambulation. The examiner determined that left knee instability was an additional condition directly due to the service-connected left knee disability explaining:

Training and traumas of repetitive forceful movements of the knee can cause changes in the joints, which is confirmed in current exam findings. Therefore, the diagnosed left knee instability is directly due to or related to the service-connected left knee degenerative arthritis, status post impact fracture, and lateral femoral condyle.

No tibial or fibular impairment was found. Nor were any other pertinent physical findings, complications, conditions, signs, or symptoms noted. Functional impact was described as limited to one quarter mile of walking, no squatting, jumping, climbing stairs or ladders. Sitting, standing, and lifting were noted to not be affected.

Other than the above VA examination, a review of the medical evidence of record shows the Veteran complained of left knee pain intermittently during the period on review. See e.g., June 2022 and February 2023 Mental Health Telemedicine Notes.

The
diagnosed left knee instability is directly due to or related to the service-connected left knee degenerative arthritis, status post impact fracture, and lateral femoral condyle.

The Board has considered the evidence of record in conjunction with the applicable laws and regulations and finds a rating in excess of 10 percent for the left knee disability under DC 5003-5260 is not warranted.

First, as limitation of motion has been shown, higher ratings under the rating criteria specified under DC 5003 for degenerative arthritis for a higher 20 percent rating may not be considered as such a rating is only possible in the absence of limitation of motion.

An increased rating under DC 5260 is not warranted as limitation of motion was not limited to at least 30 degrees of flexion. The medical evidence shows that at worst the Veteran's flexion was estimated to be limited to 75 degrees at the time of a flare-up or repeated use over time. See January 2023 VA examination.

The Board's inquiry does not end here. The Board must also consider increased evaluations under other potentially applicable DCs. See Schafrath, 1 Vet. App. at 589. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

As for limitation of extension under DC 5261, the Board finds that a separate rating is not warranted on that basis as the Veteran's extension has not been limited to at least five degrees at any point during the appeal period, even with consideration of additional functional loss during flares and following repeated use.

A separate rating under DC 5256 for ankylosis is also not warranted. The evidence of record does not show that the Veteran has been diagnosed with ankylosis or that he has exhibited the functional equivalent of ankylosis. See Dorland's Illustrated Medical Dictionary 94 (32nd ed.) (2012) (defining "ankylosis" as immobility and consolidation of a joint due to disease, injury, or surgical procedure; see also Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021). While the Veteran reported an inability to walk during flare-ups during the January 2023 VA examination, this statement does not establish that such restriction was due to immobility of the knee altogether. There is no evidence of record suggesting that his left knee was fixed in flexion to any degree at any time.

There is no indication from evidence of record that the Veteran has a meniscal condition. Thus, DC 5258 and DC 5259 are not applicable. The Board has also considered separate ratings under DC 5262 for impairment of the tibia and fibula and DC 5263 for genu recurvatum, but finds they are not warranted because the evidence does not demonstrate an impairment of the tibia and fibula or genu recurvatum.

Next the Board considers whether a separate rating for instability under DC 5257 is warranted.

The Board acknowledges that objective medical evidence is not necessarily required to establish lateral knee instability pursuant to English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). During the January 2023 VA examination, the Veteran reported his left knee would buckle and he would fall. The VA examiner endorsed the diagnosis of "left knee instability" and this diagnosis was then incorporated into the accepted left knee disability. See April 2023 rating decision and Codesheet. While the VA examiner rejected the presence of a ligament tear (sprain) or patellar instability which is required for rating under DC 5257, the record reflects the Veteran sustained a Grade one medial collateral ligament (MCL) sprain as a result of his service injury. See e.g., April 2011 STR. The Veteran was prescribed a hinged brace at the time. Id. Thus, the Board finds the Veteran did sustain a ligament tear (
2023 VA examination, the Veteran reported his left knee would buckle and he would fall. The VA examiner endorsed the diagnosis of "left knee instability" and this diagnosis was then incorporated into the accepted left knee disability. See April 2023 rating decision and Codesheet. While the VA examiner rejected the presence of a ligament tear (sprain) or patellar instability which is required for rating under DC 5257, the record reflects the Veteran sustained a Grade one medial collateral ligament (MCL) sprain as a result of his service injury. See e.g., April 2011 STR. The Veteran was prescribed a hinged brace at the time. Id. Thus, the Board finds the Veteran did sustain a ligament tear (sprain).

As explained above, for recurrent subluxation or instability generally, under amended DC 5257, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

Here, there is medical evidence of a prior ligament sprain and present instability. The remaining question is whether the Veteran has a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A hinged brace was prescribed in 2011; however, there is no prescription for a brace since this time in the medical evidence of record. While the Veteran reported regular use of a left knee brace and compression sleeve, he did not report these were prescribed by a medical provider or that they were required for instability. Critically, the VA examiner specifically indicated the Veteran did not require a prescription for an assistive device to use for ambulation.

Based on the foregoing, the Board finds that the evidence weighs against a separate rating in excess of 10 percent rating for instability under DC 5257.

As outlined above, the Board has considered and addressed the Veteran's use of over the counter medication Tylenol and determined such medication does not offer ameliorative effects or obscure loss of function beyond what is detailed above. See Ingram supra; Jones supra.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. Regarding the factors described in 38 C.F.R. §§, 4.40, 4.45, while the Veteran has less movement than normal and pain; he does not have more movement than normal; weakened movement; excess fatigability; lack of endurance or incoordination. See January 2023 VA examination. Increased evaluations for the Veteran's left knee disability are not warranted on the basis of functional loss due to the factors described in 38 C.F.R. §§, 4.40, 4.45, as the Veteran's symptoms are supported by pathology consistent with the above evaluations, and no higher. To this end, the January 2023 VA examiner took the only identified factor contributing to functional loss (pain) into account providing ROM estimates during flares and after repeated use over time, and such estimates have in turn, been considered by the Board in its analysis of appropriate disability ratings.

Based on the foregoing, a disability rating in excess of 10 percent for limitation of flexion of the left knee is denied; and a separate disability rating in excess of 10 percent for left knee instability is denied. The persuasive evidence of record weighs against finding higher or separate ratings are warranted for the Veteran's left knee disability at any point during the period on appeal. See Lynch, 21 F.4th at 781-82.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Long, Kindra F.

The Board's decision in this case is binding only with respect to the instant

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