KNEE IMPAIRMENT OF

SHAUN S. SPERANZA · 2026 · Case ID: A26040044

MIXED

Summary

The veteran, who served in the Air Force from April 1986 to February 2007, appeals the denial of an increased rating for right knee instability and right knee disability. The Board granted entitlement to a separate 30 percent rating for right knee instability, finding that the veteran's competent, credible, and consistent lay statements, along with her need for a brace and cane, indicated severe recurrent subluxation or lateral instability under the prior version of Diagnostic Code 5257. The Board found the prior VA examinations inadequate as they failed to consider the veteran's subjective symptoms and the impact of medication. The claim for a rating in excess of 20 percent for right knee disability under Diagnostic Code 5260 was remanded. The Board noted that the prior VA examinations were inadequate because they did not discount the ameliorative effects of the veteran's pain medication, as required by Jones v. Shinseki. A new examination is ordered to assess the severity of the right knee disability without considering medication effects, and to provide detailed range of motion measurements.

Rationale

Competent, credible, and consistent lay statements regarding instability; Need for brace and cane indicates severe recurrent subluxation/lateral instability; Prior version of DC 5257 applied

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210701-183278

Full Decision Text

Citation Nr: A26040044
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210701-183278
DATE: April 29, 2026

ORDER

Entitlement to a separate rating of 30 percent for right knee instability is granted, subject to the laws and regulations governing the award of monetary benefits.

REMANDED

Entitlement to a rating in excess of 20 percent for right knee disability is remanded.

FINDING OF FACT

Veteran's right knee instability symptoms more nearly approximated severe lateral instability or recurrent subluxation.

CONCLUSION OF LAW

The criteria for a separate 30 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Air Force from April 1986 to February 2007.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office, an Agency of Original Jurisdiction (AOJ).

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 11, 2025.

Therefore, the Board may only consider the evidence of record at the time of the June 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of an increased rating for right knee disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture most nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet.
severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence for and against a claim is an equipoise, the claim will be granted. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to a separate rating of 30 percent for right knee instability

Diagnostic Code 5257 applies to lateral instability or recurrent subluxation of the knee. During the pendency of this appeal, the rating criteria pertaining to Diagnostic Code 5257 was revised effective February 7, 2021. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327.

The Veteran has continuously pursued the increased rating claim since November 13, 2020. Therefore, the Board will consider the Veteran's claim under the former and amended criteria.

Under the prior version of Diagnostic Code 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Slight, moderate, and severe are not defined in the regulation.

"Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2. "Moderate," as an adjective, is defined to include as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5. "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, Definitions 6a, 6b, and 8.

Under the amended criteria, Diagnostic Code 5257 provides for recurrent subluxation or instability with a 30 percent rating that is 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. A 20 percent rating is warranted for one of the following: (a) 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) an 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 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Diagnostic Code 5257 also provides for patellar instability with a 30 percent rating 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; a 20 percent rating 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 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. Note (1) of the rating provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon, and Note (2) states that 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).

During the appeal period, the Veteran reported instability in her right knee. An October 2020 VA treatment note indicates the Veteran had knee pain, swelling with activity and buckling with activity. A November 2020 VA treatment note indicates the Veteran received knee joint injections and radiofrequency ablation (RFA). Her knee pain was sharp, and she had daily locking where she could not flex or extend and her knee would give way. A January 2024 VA treatment note indicates a history of some falls and flare-ups of the right knee. Lastly, the at the February 2025 Board hearing, the Veteran described her right knee symptoms as throbbing pain, feeling of knee dislocation, buckling, popping, and stiffness. She reported difficulty climbing and descending stairs, inability to bend the knee, and using a brace and cane for walking.

The Veteran attended knee and lower leg conditions VA examinations in April 2021 and June 2021. The April 2021 and June 2021 VA examiners determined that the Veteran did not have right knee instability. The Board finds the April 2021 and June 2021 VA examinations are inadequate as they do not consider the Veteran's lay statements and medical evidence of right knee buckling, locking, and giving way. Therefore, the April 2021 and June 2021 VA examinations are assigned minimal probative weight.

The Veteran does not have a diagnosed condition involving the patellofemoral complex of the left knee that is necessary to satisfy the criterion under amended Diagnostic Code 5257.

However, her competent, credible, and consistent lay statements indicating recurrent instability, including her need for a knee brace and cane to walk, a history of falling, and evidence of buckling indicate severe recurrent subluxation or lateral instability under prior version of Diagnostic Code 5257, warranting a 30 percent rating. See English v. Wilkie, 30 Vet. App. 347, 349 (2018) (nothing in DC 5257 provides that objective medical evidence is required to award a rating for [knee] instability itself).

Consequently, a rating of 30 percent for right knee instability is warranted. The Board notes the 30 percent rating assigned is the highest rating available under Diagnostic Code 5257. The Veteran's right knee disability has also been rated under Diagnostic Code 5260,
for a knee brace and cane to walk, a history of falling, and evidence of buckling indicate severe recurrent subluxation or lateral instability under prior version of Diagnostic Code 5257, warranting a 30 percent rating. See English v. Wilkie, 30 Vet. App. 347, 349 (2018) (nothing in DC 5257 provides that objective medical evidence is required to award a rating for [knee] instability itself).

Consequently, a rating of 30 percent for right knee instability is warranted. The Board notes the 30 percent rating assigned is the highest rating available under Diagnostic Code 5257. The Veteran's right knee disability has also been rated under Diagnostic Code 5260, for limitation of flexion of the leg which will be discussed below. The evidence does not establish any other alternative diagnostic code that would be more appropriate in this case. As such, the appeal as to this matter is granted.

REASONS FOR REMAND

The appeal is subject to the Appeals Modernization Act. When a pre-decisional duty-to-assist error occurs, the Board may have those errors corrected before deciding the claims on appeal. The Board may also remand for correction of any other error by the Agency of Original Jurisdiction (AOJ) in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating a Veteran's claim. 38 C.F.R. § 20.802.

2. Entitlement to a rating in excess of 20 percent for right knee disability

The Veteran seeks a rating higher than 20 percent for her right knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg.

The Veteran attended knee and lower leg conditions VA examinations in April 2021 and June 2021. At the April 2021 VA examination, the Veteran reported treatment to include NSAIDs and injections to the right knee. At the June 2021 VA examination, she reported treatment to include Naproxin, cold pads, and elevated leg. The April 2021 and June 2021 VA examiners did not include range of motion measurements or explanations regarding the severity of pain or its impact on the Veteran's range of motion when the Veteran is not on medication.

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). More specifically, "if [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required... to discount the ameliorative effects of medication." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc) (citing Jones, 26 Vet. App. at 63).

Diagnostic Code 5260 does not contemplate the effects of medication. Under Jones, the Board is precluded from considering the effects of the Veteran's pain medication when assigning a disability rating under the Diagnostic Code for the Veteran's right knee disability.

Consequently, the April 2021 and June 2021 VA examinations are inadequate for rating purposes as they do not address the impact of the Veteran's medication on her condition. Jones, 26 Vet. App. at 63. The inadequate VA examinations were before the AOJ at the time it issued the June 2021 rating decision. The AOJ committed pre-decisional duty to assist error by not ensuring an adequate VA examination had been provided. Remand is necessary to remedy this error.

The matter is REMANDED for the following action:

Provide the Veteran an examination to fully assess the severity of the Veteran's service-connected right knee disability.

The claims file, to include this remand, shall be made available to and reviewed by the examiner. Any necessary testing shall be performed. All pertinent symptomatology and findings must be reported in detail in accordance with VA rating criteria. Range of motion in active motion, passive motion, weightbearing, and non-weightbearing must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then the examiner must clearly explain why that is so.

In so doing, the examiner shall disregard the ameliorative effects of the Veteran's pain medications. The examiner shall provide his or her opinion as to the severity of the Veteran's right knee disability without considering the effects of her medication. Stated another way, to the extent feasible, the examiner shall describe the severity of the right knee disability, as it would be if she was not taking any pain medication.

It is understood that any determination of functional loss in situations not under direct observation is an estimate,
passive motion, weightbearing, and non-weightbearing must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then the examiner must clearly explain why that is so.

It is understood that any determination of functional loss in situations not under direct observation is an estimate, the furnishing of which may require the examiner to engage in a degree of speculation. However, if it is not possible to provide a specific measurement without speculation, the examiner must explain why. If the examiner asserts that he or she cannot offer an opinion without resorting to mere speculation regarding an estimate of additional functional loss without pain medication or during flareups and/or after repeated use over time, it is not sufficient that the opinion is based merely on a lack of expertise, insufficient information, unprocured testing, or a general aversion to offering an opinion on issues not directly observed on the part of the specific examiner. Rather, it must be clear that such an opinion is not procurable based on a lack of knowledge among the medical community at large.

SHAUN S. SPERANZA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Bobb, Jessica R.

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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