Case A26040315

JENNA BRANT · 2026 · Case ID: A26040315

DENIED

Summary

The veteran, who served from July 1968 to January 1970, appeals the denial of earlier effective dates for increased disability ratings for bilateral knee conditions and for Dependents' Educational Assistance (DEA) benefits. The veteran sought earlier effective dates for 40 percent ratings for right and left knee osteoarthritis based on limitation of extension (DC 5261) and for a 10 percent rating for left knee instability (DC 5257). The Board reviewed the evidence, including VA treatment records and a March 2020 VA examination. The Board found that prior to February 6, 2025, VA treatment records consistently documented full range of motion for the veteran's knees, with no compensable limitation of extension or instability. The Board noted that while the veteran reported pain and sought treatment, the objective findings in the treatment records did not support a compensable degree of limitation prior to February 6, 2025. The Board concluded that the criteria for the increased ratings were first met on February 6, 2025, making that the proper effective date, thus denying earlier effective dates. Regarding DEA benefits, the Board found that eligibility was granted effective February 6, 2025, based on a 100 percent disability rating. The veteran sought an earlier effective date for DEA, but the Board found no basis for this, as the veteran was not on active duty and did not meet other criteria for an earlier date. Therefore, the claims for earlier effective dates for both the knee conditions and DEA benefits were denied.

Rationale

VA treatment records consistently showed full range of motion prior to Feb 6, 2025.; Veteran's reports of pain did not reflect compensable limitation of extension.; First evidence of compensable limitation of extension was on Feb 6, 2025.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

260309-635668

Full Decision Text

Citation Nr: A26040315
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 260309-635668
DATE: April 29, 2026

ORDER

Entitlement to an effective date earlier than February 6, 2025, for the award of a 40 percent rating for right knee osteoarthritis based on limitation of extension is denied.

Entitlement to an effective date earlier than February 6, 2025, for the award of a 40 percent rating for left knee osteoarthritis based on limitation of extension is denied.

Entitlement to an effective date earlier than February 6, 2025, for the award of a separate 10 percent rating for left knee instability is denied.

Entitlement to an effective date earlier than May 25, 2023, for the award of eligibility for Dependents' Educational Assistance (DEA) is denied.

FINDINGS OF FACT

1. Prior to February 6, 2025, the Veteran's right and left knee disabilities were manifested by painful motion.

2. A compensable evaluation for limitation of extension of the right and left knee arose on February 6, 2025, when such limitation was first demonstrated by the evidence of record.

3. The Veteran did not have left knee instability prior to February 6, 2025.

4. Prior to May 25, 2023, the Veteran did not qualify for DEA benefits.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date earlier than February 6, 2025, for the award of a 40 percent rating for right knee osteoarthritis based on limitation of extension have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code (DC) 5261.

2. The criteria for entitlement to an effective date earlier than February 6, 2025, for the award of a 40 percent rating for left knee osteoarthritis based on limitation of extension have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.71a, DC 5261.

3. The criteria for entitlement to an effective date earlier than February 6, 2025, for the award of a separate 10 percent rating for left knee instability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.71a, DC 5257.

4. The criteria for entitlement to an effective date earlier than May 25, 2023, for the award of eligibility for DEA have not been met. 38 U.S.C. § 3510; 38 C.F.R. § 3.807.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1968 to January 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2025 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

In April 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2025 decision. In April 2025, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2025 decision.

In the March 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2025 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, 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
submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

As a final preliminary matter, the Board notes that the Veteran waived the remainder of the window to request a docket switch pursuant to Williams v. McDonough, 37 Vet. App. 305 (Jun. 21, 2024). See March 2026 VA Form 10182 Notice of Disagreement (NOD). Therefore, the Board may proceed with a decision.

Entitlement to an effective date earlier than February 6, 2025, for the award of a 40 percent rating for right knee osteoarthritis based on limitation of extension is denied.

Entitlement to an effective date earlier than February 6, 2025, for the award of a 40 percent rating for left knee osteoarthritis based on limitation of extension is denied.

Entitlement to an effective date earlier than February 6, 2025, for the award of a separate 10 percent rating for left knee instability is denied.

The Veteran, through his representative, contends that an earlier effective date is warranted for the award of separate evaluations for limitation of extension of the knees under DC 5003-5261, arguing that the February 2025 findings merely confirmed a level of disability that existed earlier and that the March 2020 VA examination was inadequate because it did not include a full physical evaluation. See March 2026 VA Form 10182 NOD. The Board has carefully considered this argument but finds that the weight of the evidence does not support an earlier effective date for the Veteran's right and left knee limitation of extension.

By way of background, following the Board's January 2025 grant of service connection for bilateral knee osteoarthritis, the AOJ implemented the award in a January 2025 rating decision, assigning an initial 10 percent evaluation for the right knee under DC 5003-5260, and an initial noncompensable rating for the left knee under DC 5257-5003, effective February 10, 2020, and deferring evaluation of the current level of severity. Thereafter, based on additional development, the AOJ awarded separate 40 percent evaluations for limitation of extension of each knee under DC 5003-5261, effective February 6, 2025. See March 2025 Rating Decision. The Veteran now seeks earlier effective dates for those 40 percent evaluations.

Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: "[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." As such, "the plain language of [section] 5110(b)(2)... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § § 3.400(o)(2)). See Gaston v. Shinseki, 603 F.3d 979, 984 (Fed. Cir. 2010) (holding that 38 U.S.C. § 5110(b)(2) and its implementing regulation "require[e] that an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date."); Harper v. Brown, 10 Vet. App. at 126.

A claimant or his or her duly authorized representative may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Id. An intent to file a claim must also identify the general benefit (e.g., compensation, pension) but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. Id.

Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form. Id. If VA receives a complete application form within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. Id.

Only one complete claim for a benefit (e.g., compensation, pension) may be associated with each intent to file, and if multiple claims are filed within one year of an intent to file, only the first claim filed will be associated with the intent to file a claim. See 38 C.F.R. § 3.155(d)(1)(ii).

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 veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as in the case at hand, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Here, the Veteran seeks an earlier effective date prior to
v. Brown, 7 Vet. App. 55, 58 (1994). However, in increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Here, the Veteran seeks an earlier effective date prior to February 6, 2025, for the award of an increased 40 percent rating for his bilateral knee disability rated under DC 5003-5261.

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). Specifically, select diagnostic codes were revised "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after February 7, 2021. Claims pending prior to the effective date will be considered under both the old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of the new regulation if the prior version was in effect during the pendency of the appeal. 38 U.S.C. § 5110. In this case, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and new rating criteria as of February 7, 2021. The criteria that are more favorable to the Veteran will be applied.

Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

For the period prior to February 7, 2021, under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined. 38 C.F.R. § 4.71a, DC 5003. As of February 7, 2021, the only change to DC 5003 is a change in the title to the code, indicating that the criteria apply to all types of degenerative arthritis other than post-traumatic.

Diagnostic Codes 5260 and 5261, for limitation of flexion and extension of the knee, were unchanged. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent rating is warranted for extension limited to 10 degrees. Id. A 20 percent rating is warranted for extension limited to 15 degrees. Id. A 30 percent rating is warranted for extension limited to 20 degrees. Id. A 40 percent rating is warranted for extension limited to 30 degrees. Id. A maximum 50 percent rating is warranted for extension limited to 45 degrees. Id.

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).

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.

The normal range of motion of the knee is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71a, DCs 5260, 5261.

Simultaneous compensation under multiple diagnostic codes for the knee is permissible so long as differing symptomatology is being compensated. For example, limitations of flexion and extension may both be rated, but a rating for arthritis cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. See 38 C.F.R. § 4.71a, DCs 5010, 5260, 5261. However, other manifestations of the knee disabilities, such as ankylosis and instability, may be rated with limitation of motion, and with each other, so long as differing knee disabilities or manifestations are being compensated. See 38 C.F.R. § 4.71a, DCs 5256 to 5263.

Turning to the evidence, at the March 2020 VA examination, the Veteran reported bilateral knee pain, mostly on the right knee, including difficulty with prolonged ambulation, as well as use of a brace. However, the examination report reflected normal range of motion (ROM) of both knees, including full extension to zero degrees, with no pain on examination and no additional functional loss following repetitive use. See March 2020 C&P Exam. While the Board assigns limited probative weight to aspects of this examination to the extent it conflicts with the Veteran's lay reports of pain, the specific findings regarding ROM are consistent with the contemporaneous medical evidence and therefore remain probative as to whether a compensable limitation of extension was present at that time.

The Board has also considered the Veteran's and his representative's contention that the March 2020 VA examiner did not conduct a physical examination. To the extent that this raises concerns regarding the adequacy of that examination, the Board assigns limited probative weight to the findings therein. However, even assuming arguendo that the examination was inadequate, the outcome of this case does not turn on that examination. Rather, the Board finds that contemporaneous VA treatment records to be more probative on the question of ROM, as they consistently document full ROM of the knees prior to February 6, 2025.

The Board further notes that the March 202
therefore remain probative as to whether a compensable limitation of extension was present at that time.

The Board further notes that the March 2020 examiner documented that the examination findings were reviewed with the Veteran and that the Veteran indicated he had nothing to add or take away and felt the examination was satisfactory. See March 2020 C&P Exam, Section 15 Remarks. While this notation does not, by itself, establish the adequacy of the examination, it weighs against the contention that the examination was fundamentally deficient.

Here, prior to February 6, 2025, the Veteran's VA treatment records consistently document full ROM of the bilateral knees in multiple entries and no indication of a higher compensable limitation. See February 2020 CAPRI Record; April 2020 CAPRI Record. Even where the Veteran reported worsening pain and functional limitation, such as in March 2021 when he described severe right knee pain limiting mobility, the records do not reflect limitation of extension to a compensable degree. See April 2021 CAPRI Record. Notably, VA treatment records reflect that the Veteran reported that his knee pain was stable in October 2021, March 2022, and January 2025, and is able to walk long distances, which further supports that there was no identifiable increase in severity of limitation of extension prior to February 6, 2025. See December 2017 CAPRI Record; March 2022 CAPRI Record; March 2025 CAPRI Record. Rather than merely lacking evidence of limitation, the record affirmatively reflects that the Veteran retained full ROM on both knees during this period.

Additionally, treatment records reflect that the Veteran remained physically active, including walking approximately 45 minutes, three to four times per week. See August 2024 CAPRI Record. This level of activity is inconsistent with the presence of compensable functional impairment approximating such limitation prior to February 6, 2025.

These treatment records are highly probative because they reflect the Veteran's own statements made during the course of treatment and are corroborated by clinical observations and findings from his treating physician. See White v. Illinois, 502 U.S. 346, 356 (1992) (noting that "a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility").

In contrast, the evidence dated February 6, 2025, is the first to demonstrate compensable limitation of extension of both knees. During the examination, the Veteran reported difficulty walking, running, climbing, standing, sitting, and driving. At that time, ROM testing showed extension limited with additional functional loss due to pain, fatigability, weakness, and lack of endurance, with estimated limitation to approximately 30 degrees bilaterally during flare-ups or with repeated use over time. See February 2025 C&P Exam. These findings establish, for the first time, that the criteria for a compensable evaluation under DC 5261 were met. 38 C.F.R. § 4.71a, DC 5261.

While the representative asserts that the February 2025 findings merely confirmed earlier severity, the Board finds that this is not a case in which an examination retrospectively documents an already established level of disability. Rather, the record prior to that date, including the Veteran's own reports as reflected in treatment records, consistently reflects full ROM and does not demonstrate limitation meeting the criteria under DC 5261. See English v. Wilkie, 30 Vet. App. 347 (2018) ("the Board cannot find objective medical evidence categorically more probative than lay evidence without explaining why that is the case"). Thus, the Board finds that the weight of the evidence, including the Veteran's VA treatment records, does not demonstrate compensable limitation of extension prior to February 6, 2025.

The Board has also considered the representative's contention that the March 2020 VA examiner did not have the benefit of reviewing the Veteran's medical records dated from 2003 to 2024, which were associated with the claims file in August 2024. See March 2026 VA Form 10182 NOD. However, the Board finds that this does not alter the outcome of the claim.
. 347 (2018) ("the Board cannot find objective medical evidence categorically more probative than lay evidence without explaining why that is the case"). Thus, the Board finds that the weight of the evidence, including the Veteran's VA treatment records, does not demonstrate compensable limitation of extension prior to February 6, 2025.

The Board has also considered the representative's contention that the March 2020 VA examiner did not have the benefit of reviewing the Veteran's medical records dated from 2003 to 2024, which were associated with the claims file in August 2024. See March 2026 VA Form 10182 NOD. However, the Board finds that this does not alter the outcome of the claim. Notably, the subsequently added treatment records likewise do not demonstrate compensable limitation of extension. Rather, these records consistently reflect ROM findings that were full or within normal limits and document the Veteran's continued ability to remain physically active, including regular walking. See August 2024 CAPRI Record. Accordingly, even when considering the complete evidentiary record, the evidence does not support a finding that compensable limitation of extension were present prior to February 6, 2025.

Based on the foregoing, the Board finds that the increase to a 40 percent disability rating under DC 5003-5261 was factually ascertainable on February 6, 2025. As this increase occurred after the date of claim, the proper effective date is the date entitlement arose, which is February 6, 2025. Therefore, an earlier effective date for the award of separate evaluations of 40 percent limitation of extension under DC 5261 is not warranted. Thus, the claims are denied.

The Board has also considered whether an earlier effective date is warranted for the Veteran's separately assigned evaluations for bilateral knee instability under DC 5257.

Prior to amendment in February 2021, under DC 5257 for other impairment of the knee, a rating was assigned based on the presence of recurrent subluxation or lateral instability. A 10 percent rating was warranted if there was slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. A 20 percent rating was warranted if there was moderate recurrent subluxation or lateral instability. A 30 percent rating was warranted if there was severe recurrent subluxation or lateral instability.

The Board notes that VA regulations did not define the terms "slight," "moderate," or "severe" as used in 38 C.F.R. § 4.71a, DC 5257. As such, the Board looks to the ordinary meaning of these terms.

Generally, "slight" is defined as small of its kind or in amount. See Merriam-Webster, https://www.merriam-webster.com/dictionary/slight (last visited Aug. 19, 2025). "Moderate" is defined as not being violent, severe, or intense, as well as being limited in scope or effect. See Merriam-Webster, https://www.merriam-webster.com/dictionary/moderate (last visited Aug. 19, 2025). "Severe" is defined as very harmful or painful or of a great degree. See Merriam-Webster, https://www.merriam-webster.com/dictionary/severe (last visited Aug. 19, 2025).

When addressing knee instability under DC 5257 for the rating criteria prior to February 7, 2021, objective medical evidence is not required or is to be favored over lay evidence. English v. Wilkie, 30 Vet. App. 347, 352 (2018).

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

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 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.

Note (1) associated with amended DC 5257 provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Further, note (2) associated with amended DC 5257, provides 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 a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

The Board acknowledges that the AOJ's Codesheet reflects the assignment of a diagnostic code associated with instability effective February 10, 2020. See April 2025 Rating Decision - Codesheet. However, the narrative portion of the April 2025 rating decision clarifies that the initial 10 percent evaluation assigned from February 10, 2020, was based on painful motion of the knee pursuant to 38 C.F.R. § 4.59, and that the evaluation based on instability-characterized by findings such as sprain or ligament involvement-was first assigned effective February 6, 2025. See April 2025 Rating Decision - Narrative. The Board finds the narrative explanation more probative as it reflects the actual basis for the assigned evaluations and is consistent with the medical evidence of record.

Consistent with this explanation, the weight of the evidence does not support a finding that compensable instability was present prior to February 6, 2025. At the March 2020 VA examination, the Veteran denied instability, and objective joint stability testing was normal. Likewise, contemporaneous VA treatment records do not document complaints of giving way or falls, or clinical findings of ligament laxity. Rather, the record consistently reflects that the Veteran remained physically active, including regular walking, without indication of instability-related functional impairment. Although the Veteran reported the use of a knee brace, the evidence does not demonstrate that such use was necessitated by instability as contemplated under DC 5257 prior to February 6, 2025; rather, the record reflects that the brace was used to alleviate pain and support ambulation, consistent with the already-compensated painful motion. See December 2021 CAPRI Record. Accordingly, the Board finds that the evidence does not establish that entitlement to a compensable evaluation based on instability arose prior to February 6, 2025.

Entitlement to an effective date earlier than May 25, 2023, for the award of eligibility for DEA is denied.

Survivors' and Dependents' Educational Assistance, under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a child, if the applicable criteria are met. See 38 U.S.C.
was used to alleviate pain and support ambulation, consistent with the already-compensated painful motion. See December 2021 CAPRI Record. Accordingly, the Board finds that the evidence does not establish that entitlement to a compensable evaluation based on instability arose prior to February 6, 2025.

Entitlement to an effective date earlier than May 25, 2023, for the award of eligibility for DEA is denied.

Basic eligibility for certification of DEA exists if a veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability; (2) a permanent total service-connected disability was in existence at the date of the veteran's death; (3) died as a result of a service-connected disability; or, (4) if a service member is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807(a).

Here, in the March 2025 rating decision, the AOJ granted basic eligibility to DEA benefits based on permanent and total disability status, effective February 6, 2025. In April 2025, the AOJ granted an earlier effective date of May 25, 2023, for the award of DEA benefits because the Veteran's combined evaluation increased to 100 percent on May 25, 2023. See April 2025 Rating Decision. There is no indication in the record that the Veteran was in receipt of a total (100 percent) evaluation, or otherwise found to be permanently and totally disabled, prior to that date.

To the extent the Veteran seeks an earlier effective date for DEA benefits based on the other effective date challenges as discussed in the preceding sections, the Board has determined above that such earlier effective dates are not warranted. Accordingly, there is no legal basis to assign an earlier effective date for DEA on that basis.

The remaining question here is whether there is another basis by which such eligibility could be established prior to May 25, 2023.

As the Veteran is still alive, the conditions relating to service-connected death or existence of a permanent total service-connected disability at death do not apply. See 38 C.F.R. § 3.807(a)(3), (4). The only remaining basis for eligibility requires, as a threshold matter, that he be currently on active duty, which he is not. See 38 C.F.R. § 3.807(a)(5). Consequently, there is no other basis upon which any eligibility for DEA benefits could be established in this case, much less eligibility warranting an effective date prior to May 25, 2023.

In this case, the award of DEA benefits is based on a permanent total service-connected disabilities. See March 2025 Rating Decision; April 2025 Rating Decision. In sum, the evidence is persuasively against the claim for an earlier effective date prior to May 25, 2023, for DEA benefits. As such, DEA benefits based on permanent and total disability prior to May 25, 2023, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Jenna Brant

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Gaviola, Associate Counsel

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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