RECURRENT SUBLUXATION OR INSTABILITY

K. CONNER · 2026 · Case ID: A26040916

DENIED

Summary

The veteran, who served in the U.S. Marine Corps Reserve and on active duty from June 1978 to January 1979 and September 1980 to November 1981 respectively, appeals the denial of higher initial disability ratings for his service-connected left knee condition. The veteran sought ratings in excess of 20 percent for left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability, as well as higher ratings for limitation of flexion and extension due to arthritis. The Board reviewed evidence of record up to the June 2021 rating decision, including a January 2025 hearing where the veteran described pain, stiffness, instability, and difficulty walking, leading to falls. The Board considered the VA examination from June 2021, which noted findings consistent with the veteran's claims, including an incomplete ligament tear, instability, frequent locking episodes, and pain on motion, but ultimately found the evidence did not meet the criteria for higher ratings. The Board noted the veteran's flexion was limited to 40 degrees and extension to 5 degrees, which did not meet the thresholds for higher ratings under Diagnostic Codes 5260 and 5261. The Board also considered the meniscal tear but found it did not meet criteria for separate ratings under Diagnostic Codes 5258 or 5259. The Board rejected the claim for ankylosis equivalence and noted that future knee replacement surgery was not yet a basis for a higher rating. The Board acknowledged the veteran's use of medication but found the examiner considered functional limitations during flare-ups, effectively discounting ameliorative effects. Ultimately, the Board found the evidence weighed against higher ratings and denied the appeal.

Rationale

Evidence did not meet criteria for rating in excess of 20% for instability; No complete ligament tear documented; No patellar instability requiring specific assistive devices

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210715-172577

Full Decision Text

Citation Nr: A26040916
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210715-172577
DATE: April 30, 2026

ORDER

Entitlement to an initial rating in excess of 20 percent for left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability is denied.

Entitlement to an initial rating in excess of 10 percent for left knee arthritis with limited flexion is denied.

Entitlement to an initial compensable rating for left knee arthritis with limitation of extension is denied.

FINDINGS OF FACT

1. During the entire period under review, the Veteran's left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability was manifested by an incomplete ligament tear and instability with medical device for ambulation prescribed by a medical provider.

2. During the entire period under review, the Veteran's limitation of flexion of the left knee due to arthritis was manifested by painful motion and swelling, with flexion limited to no more than 40 degrees.

3. During the entire period under review, the Veteran's limitation of extension of the left knee due to arthritis was manifested by painful motion and swelling, with extension limited to no more than 5 degrees.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 20 percent for left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257.

2. The criteria for an initial rating in excess of 10 percent for limitation of flexion of the left knee due to arthritis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5010-5260.

3. The criteria for an initial compensable rating for limitation of extension of the left knee due to arthritis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5010-5261.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran was a member of the U.S. Marine Corps Reserve, which service included a period of initial active duty for training from June 1978 to January 1979. He served on active duty in the U.S. Marine Corps from September 1980 to November 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which awarded service connection for left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability and assigned an initial 20 percent rating, effective June 1, 2021; left knee arthritis with limited flexion and assigned an initial 10 percent rating, effective June 1, 2021; and left knee arthritis with limited extension and assigned an initial noncompensable rating, effective June 1, 2021.

In July 2021, the Veteran, through his attorney, Andrew L. Wener, submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) on which Mr. Wener identified the June 2021 rating decision, the issues set forth above, and elected the Hearing docket. A Board hearing was held on January 22, 2025. A transcript of the hearing is of record.

Therefore, the Board may only consider the evidence of record at the time of the June 2021 AOJ decision, as well as any evidence submitted by the Veteran or his representative at the January 2025 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 June 2021 AOJ decision 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 submitted. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to an initial rating in excess of 20 percent for left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability.

2. Entitlement to an initial rating in excess of 10 percent for left knee arthritis with limited flexion.

3. Entitlement to an initial compensable rating for left knee arthritis with limitation of extension.

The Veteran seeks higher initial ratings for his service-connected left knee disability. On the July 2021 VA Form 10182, Mr. Wener indicated that the Veteran disagreed with the ratings assigned, but, unfortunately, offered no further argument. During the January 2025 Board hearing, the Veteran asserted that he has trouble walking because pain and stiffness in his left knee forces him to be deliberate in lifting his left leg. He also asserted that his left knee gives out, which has caused him to take "a couple tumbles off the toilet."

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 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. Separate diagnostic codes identify the various disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.

If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. in view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3.

Disability of the musculoskeletal system is primarily an inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology
, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.10, 4.40, 4.45.

The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011) the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.R.R. § 4.40.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability.

VA is also required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use," unless such effects are otherwise contemplated in a particular diagnostic code. Ingram v. Collins, 38 Vet. App. 130 (2025).

When the appeal arises from an initial rating assigned following the award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an initial rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, staged ratings may be assigned for separate periods of time based on facts found. Id.

Regarding all increased rating claims decided herein, the Veteran has been granted benefits from June 1, 2021. Thus, the Board considers whether increased ratings are warranted for the Veteran's left knee disability anytime since June 1, 2021, the effective date of service connection.

The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. As indicated above, the period under review in this claim extends from June 1, 2021, corresponding to the effective date of service connection. As such, the Board will only consider the revised version of the relevant diagnostic codes outlined below.

The AOJ has rated the Veteran's left knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 5010-5257 reflects that the Veteran left knee disability is described as post-traumatic arthritis under Diagnostic Code 5010, and that the rating assigned is based on recurrent subluxation or instability under Diagnostic Code 5257. The AOJ has also assigned separate ratings for left knee arthritis with limitation of flexion and extension under Diagnostic Codes 5260 and 5261, respectively.

Diagnostic Code 5257 provides that knee, other impairment of, should be rated as follows:

Recurrent subluxation or instability: 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, a 30 percent disability rating is warranted.

For one of the following, a 20 percent disability rating is warranted: (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; (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider pre-scribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

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 10 percent disabling rating is warranted.

Patellar instability: 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 30 percent disabling 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 20 percent disability 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 10 percent disability rating is warranted.

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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).

Under Diagnostic Code 5260, a zero percent disability rating is warranted for flexion limited to 60 degrees. A 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees.

Under Diagnostic Code 5261, a zero percent disability rating is warranted for extension limited to 5 degrees. A 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is warranted for extension limited to 15 degrees. A 30 percent disability rating is warranted for extension limited 20 degrees. A 40 percent disability rating is warranted for extension limited to 30 degrees; and a 50 percent disability rating is warranted for extension limited to 45 degrees.

Separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (
15 degrees.

Separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint).

Turning to the evidence, in June 2021, the Veteran was afforded a VA examination. He reported pain, stiffness, swelling, and instability, and that he uses Tylenol and topical cream to treat these symptoms. He endorsed flare-ups that he described as severe increase in pain, stiffness, swelling, and instability that occurs three to four times per week, lasts most of the day, is precipitated by movements required for his job as a semi-truck mechanic, and alleviated by hot water sitz baths and rest. He reported that during a flare-up, he cannot run, jump, lunge, squat, or walk or stand for more than short times and distances. Initial range of motion testing revealed flexion to 80 degrees and extension to 5 degrees. Pain that causes functional loss was noted with weight-bearing, nonweight-bearing, active motion, passive motion, and on rest/non-movement. There was objective evidence of crepitus as well as objective evidence of severe localized tenderness or pain on palpation of peripatellar joint lines. After repetitive use testing, pain, fatigability, weakness, and lack of endurance caused additional loss of range of motion as follows: flexion to 55 degrees and extension to 5 degrees. The examiner noted that the Veteran was not being examined immediately after repeated use over time, but estimated that pain, fatigability, weakness, lack of endurance, and incoordination would cause additional loss of range of motion as follows: flexion to 50 degrees and extension to 5 degrees. The examiner reported that pain, fatigability, weakness, lack of endurance, and incoordination significantly limit functional ability with flare-ups and estimated this in terms of range of motion as follows: flexion to 40 degrees and extension to 5 degrees. There was no atrophy or ankylosis. The examiner reported recurrent subluxation or persistent instability, due to an incomplete/partial ligament tear, that requires a prescription by a medical provider for a walker and a brace. There was no recurrent patellar instability or any tibial or fibular impairment. The examiner reported a meniscal tear that causes frequent episodes of joint "locking," joint pain, and joint effusion. As to functional impact, the examiner reported that it is difficult for the Veteran to get in and around the semi-trucks he works on and that he must take it slow and use a walker and brace. He also reported that the Veteran avoids stairs and ladders due to pain and instability and that the left knee is going to be replaced soon.

During the January 2025 Board hearing, the Veteran testified that he has trouble walking because pain and stiffness in his left knee forces him to be deliberate in lifting his left leg. He also testified that due to left knee instability, he has taken "a couple tumbles off the toilet." The Veteran testified that his left knee swells if he climbs stairs or stands for long periods and that he has been advised by his doctor that he needs a left knee replacement.

Applying the facts in this case to the criteria set forth above, the Board finds that an initial rating in excess of 20 percent for left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability is not warranted at any time during the period under review. The Board also finds that an initial rating in excess of 10 percent for limitation of flexion due to left knee arthritis, and an initial compensable rating for limitation of extension due to left knee arthritis, is not warranted at any time during the period under review.

With respect to the rating for instability under Diagnostic Code 5257, the June 2021VA examiner indicated that the Veteran did exhibit recurrent subluxation or persistent instability and has an incomplete/partial ligament tear. He indicated that the Veteran is prescribed a walker and brace to aid in ambulation. There is no documentation of a complete lig
pain syndrome, and chondromalacia patella with instability is not warranted at any time during the period under review. The Board also finds that an initial rating in excess of 10 percent for limitation of flexion due to left knee arthritis, and an initial compensable rating for limitation of extension due to left knee arthritis, is not warranted at any time during the period under review.

With respect to the rating for instability under Diagnostic Code 5257, the June 2021VA examiner indicated that the Veteran did exhibit recurrent subluxation or persistent instability and has an incomplete/partial ligament tear. He indicated that the Veteran is prescribed a walker and brace to aid in ambulation. There is no documentation of a complete ligament tear such as would warrant a 30 percent rating under Diagnostic Code 5257. Additionally, the examiner found that the Veteran did not have patellar instability and, therefore, a 30 percent rating would not be warranted under Diagnostic Code 5257. As such, a rating in excess of 20 percent for left knee strain, meniscal tear, arthritis, patellofemoral pain syndrome, and chondromalacia patella with instability is not warranted at any time during the period under review.

Given the documented meniscal tear in the June 2021 VA examination report, the Board has considered whether a separate rating for meniscal pathology is warranted but finds that it is not. Diagnostic Code 5258 contemplates dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 contemplates removal of the semilunar cartilage. The June 2021 VA examination report indicates that a 2020 MRI showed a meniscal tear, and that the Veteran has resulting frequent episodes of joint "locking," joint pain, and joint effusion. As the Veteran has not undergone removal of the semilunar cartilage of the left knee, a separate rating under Diagnostic Code 5259 is not warranted. Because the Veteran's meniscal pathology was diagnosed, via MRI, as a tear and not a dislocation, a separate rating under Diagnostic Code 5258 is also not warranted.

With respect to the rating based on limitation of flexion under Diagnostic Code 5260, a 20 percent rating requires a showing of flexion limited to 30 degrees, and the maximum 30 percent rating requires a showing of flexion limited to 15 degrees. Here, the evidence of record persuasively weighs against a rating in excess of 10 percent as there is no evidence that these criteria were met at any time during the pendency of the claim. In this regard, at no time did the Veteran's left knee disability result in flexion limited to 30 degrees or less, even in contemplation of functional loss due to pain or as a result of repetitive use. Specifically, the Veteran underwent range of motion testing at his June 2021 VA examination, and flexion of his left knee was, at worst, limited to 40 degrees. There are no other medical records during the appeal period that document flexion of the left knee limited to 30 degrees or less. As such, a rating in excess of 10 percent under Diagnostic Code 5260 is not warranted for the Veteran's left knee disability.

With respect to the rating based on limitation of extension under Diagnostic Code 5261, a 10 percent rating requires a showing of extension limited to 10 degrees, and a 20 percent rating requires a showing of extension limited to 15 degrees. Here, a compensable rating is not warranted as extension has never been limited to 10 degrees or worse. Range of motion testing at the June 2021 VA examination showed extension of the left knee was, at worst, limited to 5 degrees, which warrants a noncompensable rating under Diagnostic Code 5261. To assign separate compensable ratings under Diagnostic Codes 5260 and 5261 for the same symptoms contemplated by the current 10 percent rating under Diagnostic Code 5260 for painful motion would violate the rule against pyramiding. 38 C.F.R. § 4.14; VAOPGCPREC 9-2004 (2004) (separate ratings may be assigned under Diagnostic Codes 5260 and 5261 where there is compensable limitation of flexion and extension).

The Board recognizes the Veteran's assertion that he is limited in flexion and extension of his left knee and that stiffness forces him to be deliberate in lifting his left leg. See January 2025 Board hearing transcript. Accordingly, the Board has considered whether the Veteran's left knee symptoms should be considered the functional equivalent of ankylosis. A 30 percent disability rating may be assigned for ankylosis at a favorable angle in full extension, or in slight flexion between zero and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The Board has considered the Veteran's impaired range of motion in the assigned ratings for flexion and extension. The evidence does not support a finding that the Veteran's left knee disability more nearly approximates ankylosis and the Board is prohibited from speculating as to any potential functional impairment and emphasizes that there must be a basis in fact for an assigned rating. See 38 C.F.R. § 3.102; see also Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that the provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). As detailed above, the Veteran has been able to achieve no worse than 40 degrees of flexion and 5 degrees of extension. The June 2021 VA examiner specifically determined that the Veteran did not have ankylosis of the left knee, and he estimated additional loss of motion during flare ups and repeated use over time, which demonstrated that the Veteran's left knee retains motion. There is nothing in the record to suggest that a finding of ankylosis has been met or approximated. Accordingly, the evidence does not demonstrate that the Veteran's left knee exhibits limitation of motion that is the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021).

The Board also recognizes the Veteran's assertion that he will be undergoing a left knee replacement in the future. As such has not yet occurred, however, a higher or separate rating under Diagnostic Code 5055 is not warranted.

Finally, the Board acknowledges that it must discount the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). "Thus, if [the applicable Diagnostic Code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication when evaluating [the disability]. Conversely, if [the applicable Diagnostic Code] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc); see also Ingram v. Collins, 38 Vet. App. 130 (2025).

Here, the June 2021 VA examiner noted that the Veteran uses Tylenol and topical cream to treat his left knee disability. In rendering range of motion findings, the examiner considered the Veteran's descriptions of his functional limitations when his pain and functional impairment are at their worst (e.g., during flare ups and repeated use, due to pain, fatigability, weakness, lack of endurance). The examiner provided an estimate of additional loss of motion when the Veteran's pain level was at its worst, i.e., presumably either without the use of any medication, or when its use is ineffective in alleviating his pain, thereby discounting any potential ameliorating effects of medication.

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Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim. As the evidence is not in approximate balance as to whether higher ratings are warranted, the benefit of the doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Madison, Siobhan K.

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

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