KNEE IMPAIRMENT OF

J. PARKER · 2026 · Case ID: A26040402

MIXED

Summary

The veteran, who served from February 1985 to March 1988, appeals a June 2021 rating decision concerning his right knee disability. The appeal focuses on obtaining higher initial disability ratings for the period beginning December 31, 2008. The veteran sought increased ratings for right knee arthritis and instability, and a compensable rating for limitation of flexion and a scar. The Board reviewed evidence including VA examinations from April 2009 and May 2021, private treatment records, and the veteran's testimony. The Board found that the veteran's right knee disability met the criteria for a 20 percent rating under Diagnostic Code 5258 due to frequent locking, pain, and effusion, granting a higher rating for this aspect. The Board also granted a separate 20 percent rating for moderate right knee instability under Diagnostic Code 5257, based on consistent lay reports of giving way and buckling, and the prescription of a knee brace. However, the Board denied a higher compensable rating for limitation of flexion, finding the evidence did not support flexion limited to 45 degrees or less, and denied a compensable rating for the right knee scar, as it was not found to be painful, unstable, deep, or extensive enough to meet rating criteria. The decision noted that pyramiding was avoided by rating the knee under Diagnostic Code 5258 instead of separately for pain and locking under Diagnostic Code 5261.

Rationale

Met criteria for 20% rating under DC 5258; Frequent episodes of locking, pain, and effusion; Avoided pyramiding by rating under DC 5258 instead of DC 5261

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210714-174515

Full Decision Text

Citation Nr: A26040402
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210714-174515
DATE: April 29, 2026

ORDER

For the initial rating period on appeal from December 31, 2008, a higher initial disability rating of 20 percent for the right knee disability is granted.

For the initial rating period on appeal from December 31, 2008, a separate initial disability rating of 20 percent, but no higher, for moderate right knee instability is granted.

For the initial rating period on appeal from December 31, 2008, an initial compensable disability rating for right knee limitation of flexion is denied.

For the initial rating period on appeal from December 31, 2008, an initial compensable disability rating for the scar, right knee, status post lateral release (right knee scar) is denied.

FINDINGS OF FACT

1. For the entire initial rating period on appeal, the right knee disability manifested as painful limitation of motion, locking, and effusion into the joint.

2. For the entire initial rating period on appeal, the right knee disability manifested in moderate instability.

3. For the entire initial rating period on appeal, the right knee disability did not result in limitation of flexion to 45 degrees or less.

4. For the entire initial rating period on appeal, the right knee scar measured approximately 1 centimeter (cm.) by 1 cm. and did not manifest as painful or unstable, as deep nonlinear scar that is at least 39 square (sq.) cm., or a superficial nonlinear scar that is at least 929 sq. cm.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal, the criteria for a higher initial disability rating of 20 percent for the right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258.

2. Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal, the criteria for a separate rating of 20 percent for the right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257.

3. For the entire initial rating period on appeal, the criteria for a compensable initial disability rating based on right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

4. For the entire initial rating period on appeal, the criteria for an initial compensable rating for the right knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, had active service from February 1985 to March 1988.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

By way of procedural history, a January 2021 Board decision granted service connection for a right knee disability. A June 2021 rating decision implementing the January 2021 Board decision 1) granted service connection for patellofemoral pain syndrome with arthritis and Baker's cyst, status post lateral release, right knee with an initial rating of 10 percent effective December 31, 2008, 2) granted service connection for limitation of flexion right knee with an initial rating of 0 percent effective December 31, 2008, and 3) granted service connection for a scar, right knee, status post lateral release with an initial rating of 0 percent effective December 31, 2008. The Veteran filed a substantive appeal in July 2021.

The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) or modernized review system, created a new framework of review for veterans who
femoral pain syndrome with arthritis and Baker's cyst, status post lateral release, right knee with an initial rating of 10 percent effective December 31, 2008, 2) granted service connection for limitation of flexion right knee with an initial rating of 0 percent effective December 31, 2008, and 3) granted service connection for a scar, right knee, status post lateral release with an initial rating of 0 percent effective December 31, 2008. The Veteran filed a substantive appeal in July 2021.

The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) or modernized review system, created a new framework of review for veterans who disagree with VA's decision on their claim. 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 April 11, 2025 and a copy of the hearing transcript was associated with the record. 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 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Disability Ratings Legal Authority

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 4.38?U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifesta-tion of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (
4.25. Pyramiding, the rating of the same disability, or the same manifesta-tion of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. 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 compensating a veteran twice for the same symptoms or functional impairment).

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 flareups 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and non weight-bearing conditions. In Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flareups before determining that additional range of motion loss due to flareups cannot be estimated.

It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to disabilities involving arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

The appropriate diagnostic codes for rating limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension).

Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 525
disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate, or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. According to Merriam Webster's Collegiate Dictionary (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Lay evidence as to lateral instability should be weighed on a case-by-case basis. English v. Wilkie, 30 Vet. App. 347 (2018).

Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating; ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. 38 C.F.R. § 4.71a.

Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. 38 C.F.R. § 4.71a.

Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate, or marked knee or ankle disabilities. 38 C.F.R. § 4.71a.

Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. The amendments divided Diagnostic Code 5257 into two subsections, recurrent subluxation or instability and patellar instability, each with its own criteria. 38 C.F.R. § 4.71a.

For recurrent subluxation or instability, 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. A 20 percent is warranted under one of two scenarios: 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 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
20 percent is warranted under one of two scenarios: 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 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. 38 C.F.R. § 4.71a.

For patellar instability, 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. 38 C.F.R. § 4.71a.

Two notes accompany the revised Diagnostic Code 5257. Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 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). 38 C.F.R. § 4.71a.

Diagnostic Code 5262 now provides for impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula. Malunion of the tibia and fibula are to be rated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 30 percent rating is assigned for medial tibial stress syndrome (MTSS) or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one of the lower extremities. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment for one or both of the lower extremities. A 0 percent rating is assigned for MTSS or shin splints with treatment less than 12 consecutive months for one or both of the lower extremities. 38 C.F.R. § 4.71a.

1. For the initial rating period on appeal from December 31, 2008, a higher initial disability rating of 20 percent for the right knee disability is granted.

2. For the initial rating period on appeal from December 31, 2008, a separate initial disability rating of 20 percent, but no higher, for moderate right knee instability is granted.

3. For the initial rating period on appeal from December 31, 2008, a higher (compensable) initial disability rating for right knee limitation of flexion is denied.

VA assigned a 10 percent disability rating under Diagnostic Code 5261 for painful limitation of extension between 10 to 14 degrees. VA also assigned a noncompensable disability rating under Diagnostic Code 5260 for painful limitation of flexion between 46 to 60 degrees. The Veteran appeals for higher ratings for the right knee disability.

Higher 20 Percent Rating for Right Knee Arthritis of 20 Percent under DC 5258

For the reasons discussed below, the Board finds a higher initial disability rating of 20 percent for the right knee is warranted under alternative Diagnostic Code 5258 based on frequent episodes of locking, pain, and effusion into the joint.

VA provided an examination in April
ion is denied.

Higher 20 Percent Rating for Right Knee Arthritis of 20 Percent under DC 5258

VA provided an examination in April 2009 wherein the Veteran reported right knee pain, stiffness, weakness, incoordination, giving way, instability, decreased speed of joint, locking weekly, tenderness, and effusion one time. The Veteran reported that the chronic right knee pain ranged in severity from 3 to 10 out of 10. The Veteran reported severe flareups monthly for one to two days with over activity that impacted standing longer than five to ten minutes and walking more than two blocks. The Veteran did not use assistive devices. For active range of motion in the right knee and after repetitive use, flexion was to 90 when pain began and extension was to 0 degrees. The examiner indicated patellar abnormality with subpatellar tenderness and clicking or snapping. There was no crepitus, grinding, instability, or meniscus abnormality.

VA provided an examination in May 2021 wherein the Veteran reported right knee pain, stiffness, and swelling with flareups three to four times per week lasting two to eight hours with increased symptoms rated at 8 or 9 out of 10. The Veteran reported that flareups limited standing, walking, and climbing stairs.

For active and passive range of motion in the right knee, flexion was to 60 and extension to 5 degrees with pain on flexion, extension, active motion, and passive motion that impacted kneeling, standing, walking, running, and stair climbing. The VA examiner estimated range of motion with repeated use over time and during flareups as knee flexion to 55 and extension to 10 degrees due to pain.

The Veteran was not able to perform repetitive use testing with at least three repetitions. The Veteran was not being examined immediately after repeated use over time or during a flareup. There was crepitus, and objective evidence of moderate localized tenderness or pain on palpitation on the medial, lateral, and anterior joint line, and popliteal fossa. The examiner indicated no ankylosis of the knee joint, effusion, muscle atrophy, recurrent subluxation or persistent instability, recurrent patellar instability, ligament tear (sprain), tibial or fibular impairment, meniscal conditions, or required prescription (by a medical provider) of assistive devices for ambulation. The Veteran reported regular use of a brace and occasional use of a cane for the right knee degenerative arthritis. The examiner indicated a history of lateral release surgery in 1989.

Private treatment records from May 2011 indicated the Veteran reported right knee swelling, buckling, worsening knee pain with weightbearing, and feeling like the kneecap was unstable and out of place. The private clinician indicated no joint stiffness of the right knee or swelling. VA treatment records from November 2011 indicated pain and swelling in the right knee for four days with pain intensity of 9 out of 10. VA treatment records indicated that a right knee brace was prescribed in January 2012. Private treatment records from April 2025 assessed severe right knee pain with a slight antalgic gate, pain with range of motion, and tenderness with palpation over medial joint line but without joint effusion or falls in the last year.

The Veteran testified that the right knee had been locking up in the front of the knee since 2008, requiring a jerk it to get it unlocked. The Veteran reported swelling in the knee joint with overuse that would get hot to the touch and increase stiffness, and reported the inability to squat without pain since 2008.

While the Veteran was not found to have a meniscal condition pursuant to the evidence discussed above, the right knee disability met all the other requirements for a higher (alternative) 20 percent rating under Diagnostic Code 5258 (for locking, pain, and effusion). Right knee pain and limitation of motion are already rated (compensated) under Diagnostic Code 5261, which provides a 10 percent rating for painful limitation of motion. Diagnostic Code 5258 compensates for the same pain and locking (a form of limitation of motion) and provides a higher 20 percent rating, which is more favorable to the Veteran, and so has been applied by the Board. Consequently, as the same pain and limitation of motion (one form of which is locking) previously rated under Diagnostic Code 5261 will now be rated under Diagnostic Code 5258, the 10 percent rating under Diagnostic Code 5261 will be discontinued, as two ratings (double compensation) for pain and limitation of motion of the right knee constitutes prohibited pyramiding of benefits, contrary to 38 C.F.R. § 4.14. See Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment).

VA also assigned a noncompensable rating under Diagnostic Code 5260 for painful limitation of flexion. The limitation of motion encompassed by the rating criteria under Diagnostic Code 5258 as joint "locking" is analogous to limitation of extension, which is not encompassed by the rating criteria under Diagnostic Code 5260 (limitation of flexion); therefore, under the specific facts of this case, granting a separate rating under both Diagnostic Code 5258 and Diagnostic Code 5260 would not violate the rule against pyramiding. 38 C.F.R. § 4.14.

Based upon the above, the Board finds that, for the entire initial disability rating period on appeal, beginning December 31, 2008, the right knee disability manifested as painful limitation of motion, locking, and effusion into the right knee joint. Such findings are consistent with the grant of a higher initial disability rating of 20 percent for the right knee, under Diagnostic Code 5258, for the entire initial disability rating period on appeal beginning December 31, 2008. 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5258.

The Board has considered whether higher or separate compensable ratings may be warranted under any other diagnostic codes.

Separate 20 Percent Rating for Right Knee Instability

After review of all the evidence, lay and medical, the Board finds that for the entire initial rating period on appeal, the right knee disability manifested as moderate right knee instability under the previous version of Diagnostic Code 5257. While the VA examinations in April 2009 and May 2021 did not assess instability, the Veteran has consistently reported instability in the right knee for the entire rating period, including giving way, buckling, feeling like the kneecap was unstable, and feeling like the kneecap was out of place. See April 2009 VA examination, May 2011 private treatment records, and April 2025 hearing transcript (describing the right knee giving way since 2008). VA treatment records indicated that VA prescribed a right knee brace in January 2012, although treatment records did not specifically indicate if the brace was for instability. The Veteran reported ongoing use of a brace for ambulation since 2008 and the use of a cane or walker once in a while. See April 2025 hearing transcript. The instability and giving out at times shows a level of disability that is "moderate" or "limited in scope or effect" because while the instability was not attributed to specific activities, the reported instability is more or less steady in frequency.

A higher disability rating of 30 percent is not warranted under the previous version of Diagnostic Code 5257 for "severe" instability because the evidence does not show that the Veteran was completely prevented from performing simple motions like ambulating (the Veteran was able to ambulate with a brace) or performing activities of daily living due to the instability. Such symptoms may indicate a level of disability that is "severe" or "very painful or harmful or of a great degree" due to the serious impacts on daily functional impairment.

The Board has also considered whether a higher rating under the current version of Diagnostic Code 525
effect" because while the instability was not attributed to specific activities, the reported instability is more or less steady in frequency.

The Board has also considered whether a higher rating under the current version of Diagnostic Code 5257 would be more favorable to the Veteran. While the Veteran did have a history of a right knee lateral release surgery, the record did not indicate that the Veteran required a prescription by a medical provider for a brace and either a cane or a walker as required for a higher 30 percent rating.

The Board has considered whether a separate or alternative but higher disability rating is warranted for any other right knee disability; however, the evidence of record does not reflect that the right knee is ankylosed, that there is malunion or nonunion of the tibia and fibula, that there is a current diagnosis of genu recurvatum, that there is limitation of flexion to 30 degrees, or that there is limitation of extension to 15 degrees. Diagnostic Code 5259 provides for disability ratings when semilunar cartilage is removed and related symptoms are present. As explained above, in the instant decision the Board is granting a higher initial disability rating of 20 percent in the right knee under Diagnostic Code 5258 despite the evidence showing no diagnosis of a meniscal condition. Further, even if the Veteran had a semilunar cartilage/meniscal condition, a separate rating under Diagnostic Code 5259 is not warranted as that would result in improper pyramiding due to all the symptoms discussed above already being rated and compensated for under Diagnostic Code 5258. 38 C.F.R. § 3.14; Esteban at 261-62; Lyles, 29 Vet. App. 107. Thus, additional separate or higher disability ratings are not warranted under Diagnostic Codes 5256 or 5259-5263. 38 C.F.R. § 4.71a.

Compensable Rating for Right Knee Limitation of Flexion under DC 5260

VA assigned a noncompensable disability rating for the right knee under Diagnostic Code 5260 for painful limitation of flexion between 46 to 60 degrees.

After review of all the evidence of record, lay and medical, the persuasive weight of the evidence is against finding that the right knee flexion was limited to 45 degrees or less, which is required for a 10 percent rating under Diagnostic Code 5260. The evidence shows flexion was limited to 55 degrees at worst with repeated use over time and during flareups as estimated in the May 2021 VA examination. The limitation of flexion impacted kneeling, standing, walking, running, and stair climbing.

Consideration has been given to whether the Veteran experienced additional functional loss due to pain, weakness, excess fatigability, and incoordination that is not reflected on range of motion testing. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. The Board has considered the Veteran's reports of painful motion. Such painful motion forms the basis of the currently assigned rating of zero percent based on limitation of flexion, as the VA examiner assessed such additional limitations of the knee during flareups of pain. The Board has relied on the assessments of limitations of motion and function during flareups of pain, and not simply on the clinical measures of knee ranges of motion during examination. Accordingly, a higher initial rating is not warranted based on flareups or repeated use over time, as the evidence does not show flexion limited to 45 degrees or less during flareups or after repetitive use over time at any time during the entire initial rating period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

As the persuasive weight of the lay and medical evidence is against finding that there is limitation of flexion to 45 degrees or less, the appeal for a compensable initial rating for the right knee disability based on limitation of flexion is denied.

4. For the initial rating period on appeal from December 31, 2008, an initial compensable disability rating for the right knee scar is denied.

The Veteran appeals for a higher (compensable) initial rating for the right hip
not show flexion limited to 45 degrees or less during flareups or after repetitive use over time at any time during the entire initial rating period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

4. For the initial rating period on appeal from December 31, 2008, an initial compensable disability rating for the right knee scar is denied.

The Veteran appeals for a higher (compensable) initial rating for the right hip scar disability. For the entire initial rating review period from December 31, 2008, the service-connected right knee scar has been rated at 0 percent under the criteria found at 38 C.F.R. § 4.118, Diagnostic Code 7805. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118.

Effective August 13, 2018, during the course of the appeal, the criteria for rating skin/scar disabilities were revised. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." 83 Fed. Reg. at 32593. As the instant matter was pending prior to the August 13, 2018 revisions, the Veteran's initial rating claim for the right knee scar must be considered under both sets of rating criteria for the skin - the rating criteria both before and after August 13, 2018. See 83 Fed. Reg. at 32593.

Diagnostic Code 7800 rates scars of the head, face, or neck based upon disfigurement, and does not apply in this case as the residual scar is not located on the head, face, or neck. 38 C.F.R. § 4.118.

Under the previous version of Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801.

Under the previous version of Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802.

Relevant to the instant matter, following the August 13, 2018 revision, Diagnostic Code 7801 remains essentially the same, except that "deep and nonlinear" has been changed to "underlying soft tissue damage". Further, Diagnostic Code 7802 remains essentially the same, except that "superficial and nonlinear" has been changed to "not associated with underlying soft tissue damage."

One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating.
a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802.

One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804.

Diagnostic Codes 7804 and 7805 were not affected by the August 13, 2018 skin/scar amendments.

After a review of all the evidence of record, lay and medical, the Board finds that the persuasive weight of the evidence is against a finding that a compensable disability rating is warranted under any potentially applicable diagnostic code for the right knee scar. The Veteran was afforded a VA examination in May 2021 wherein the examiner indicated one right knee scar that was not unstable, was not associated with underlying soft tissue damage, was not due to burns, and that measured at approximately 1 sq. cm. in total area. In addition, the Veteran has not alleged, and the record does not otherwise reflect, that the right knee scar was painful or unstable.

A compensable disability rating is not warranted under Diagnostic Code 7801 because the VA examiner did not assess that the right knee scar was associated with underlying soft tissue damage or covered an area of 39 sq. cm. A compensable disability rating is not warranted under Diagnostic Code 7802 because the VA examiner did not assess the right knee scar covered an area of 929 sq. cm. or greater. A compensable rating under Diagnostic Code 7804 is not warranted because the VA examiner did not assess that the right knee scar was painful or unstable. Diagnostic Code 7805 merely encompasses all other scars and does not provide a separate compensable rating.

The persuasive weight of the evidence is against a finding that the criteria for a compensable disability rating for the right knee scar have been met; therefore, the appeal must be denied.

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Beilsmith, 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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