Case A26040964

L. STEPANICK · 2026 · Case ID: A26040964

MIXED

Summary

The veteran, who served from January 1967 to December 1969, appeals decisions regarding TDIU, Dependents' Educational Assistance (DEA), and increased ratings for his cervical spine and right knee disabilities. The Board granted TDIU effective August 16, 2017, finding that the veteran's service-connected disabilities, including cervical spine degenerative joint disease, right knee strain with degenerative arthritis, bilateral hearing loss, and tinnitus, precluded him from substantially gainful employment. The Board based this decision on a favorable opinion from Dr. B.T., who concluded the veteran could not maintain substantially gainful employment due to his conditions, and by resolving reasonable doubt in the veteran's favor, finding the evidence in relative equipoise. Basic eligibility for DEA was also granted effective August 16, 2017, based on the TDIU award. For the cervical spine, the Board granted a 30 percent rating effective August 16, 2017, finding the evidence supported a forward flexion limitation of 15 degrees or less, applying the benefit of the doubt. For the right knee, the Board denied an increased rating for painful motion and limited extension, but granted a 20 percent rating for moderate instability throughout the claim period, based on the veteran's reports of his knee giving out and regular use of a brace, resolving reasonable doubt in his favor.

Rationale

Service-connected disabilities preclude substantially gainful employment; Favorable opinion from Dr. B.T.; Evidence in relative equipoise, benefit of doubt applied

Special Benefit

TDIU

Docket No.

251103-607348

Full Decision Text

Citation Nr: A26040964
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 251103-607348
DATE: April 30, 2026

ORDER

A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted effective August 16, 2017.

Basic eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted effective August 16, 2017.

Effective August 16, 2017, an initial rating of 30 percent, but no higher, for a cervical spine disability is granted.

An initial disability rating in excess of 10 percent for service-connected right knee strain (painful motion) is denied.

An initial compensable disability rating for service-connected right knee strain (limited extension) is denied.

Effective August 16, 2017, an initial 20 percent rating, but no higher, for right knee instability is granted.

FINDINGS OF FACT

1. Effective August 16, 2017, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation.

2. Effective August 16, 2017, the Veteran is permanently and totally disabled due to a service-connected disability.

3. Throughout the claim period, resolving reasonable doubt in the Veteran's favor, his cervical spine disability caused forward flexion limited to 15 degrees; it did not cause unfavorable ankylosis or its functional equivalent.

4. The Veteran's right knee disability was at worst manifested by painful motion, with forward flexion limited to 85 degrees, extension limited to 5 degrees, and moderate instability, without a diagnosed ligament tear or surgery, during the period on appeal.

CONCLUSIONS OF LAW

1. Effective August 16, 2017, the criteria for a TDIU due to the Veteran's service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16.

2. Effective August 16, 2017, the criteria for basic eligibility for DEA pursuant to 38 U.S.C. Chapter 35 have been met. 38?U.S.C. §§?3501, 3510, 5113;?38?C.F.R. §§?3.807, 21.3021.

3. Effective August 16, 2017, the criteria for an initial rating of 30 percent, but no higher, for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

4. The criteria for an initial rating in excess of 10 percent for a right knee disability based on painful motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5260.

5. The criteria for an initial compensable rating for right knee limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5261.

6. Effective August 16, 2017, the criteria for a 20 percent rating, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1967 to December 1969.

This matter comes to the Board of Veterans' Appeals (Board) following his appeal of an April 2025 initial decision (DEA benefits) and a December 2024 higher-level review decision (all other issues) of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1967 to December 1969.

In the November 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2025 decision for the DEA claim or at the time of the May 2024 AOJ decision that was subsequently subject to higher-level review for all other issues on appeal, plus evidence submitted within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303.

If evidence was submitted either (1) during the period after the AOJ issued those decisions and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was added to the claims file 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 related 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.

As a final preliminary matter, the Board notes that these claims have been continuously pursued since a September 2023 rating decision awarded service connection for neck and right knee disabilities. Accordingly, the claim period for all of the issues on appeal begins on August 16, 2017.

1. TDIU is granted effective August 16, 2017.

The Veteran contends that his service-connected disabilities warrant the award of a TDIU. For the reasons set forth below, the Board finds that a TDIU is warranted effective August 16, 2017.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). TDIU may be assigned on either a schedular or extraschedular basis. 38 C.F.R. § 4.16.

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component is met when the Veteran is unemployed or marginally employed. Marginal employment generally shall be deemed to exist when the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment includes employment in a protected environment, such as a family business or sheltered workshop, which involves a lower-income position that, due to the Veteran's service-connected disabilities, is shielded in some respect from competition in the employment market. LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

The non-economic component of the phrase "unable to secure and follow a substantially gainful occupation" includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the Veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Ray, 31 Vet. App. at 73.

The Board is not permitted to consider advancing age or a nons
secure and follow a substantially gainful occupation" includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the Veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Ray, 31 Vet. App. at 73.

The Board is not permitted to consider advancing age or a nonservice-connected disability when determining entitlement to a TDIU. 38 C.F.R. §§ 3.341(a), 4.16, 4.19.

A TDIU does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

Turning to the evidence of record, the Veteran reported in his January 2024 VA Form 21-8940 that he last worked full time in June 2016 as an operations manager, working forty hours per week. He also reported other jobs in sales. He reported completing four years of college. He indicated he became too disabled to work in 2016.

As early as February 2005, the Veteran reported that chronic medical problems and pain have interfered with his ability to find and maintain gainful employment. See February 15, 2005 VA Treatment Record.

A September 11, 2017 VA neck conditions examination noted that the Veteran's neck has worsened over time, and chronic pain causes functional loss affecting his ability to lift objects and drive.

A September 11, 2017 VA knee and lower leg examination noted the Veteran's right knee locks and he has less movement than normal due to ankyloses, adhesions, etc. and cannot kneel.

A November 22, 2017 VA neck conditions examination noted the Veteran experiences right-sided paraspinal burning pain with occasional sharp spikes of pain radiating up to the back of the head and down his right arm to the wrist and hand. He does home traction and massage and takes gabapentin, celecoxib, methocarbamol, and medical marijuana. He uses a cane primarily for his knees, but it cannot help prevent jolting of the neck when walking on uneven ground. Prolonged sitting aggravates his neck pain, and he cannot drive for prolonged periods due to neck pain with turning his head for mirrors and when backing up.

In an October 2025 report submitted during an applicable evidentiary window, Dr. B.T. concluded that due to the Veteran's service-connected physical conditions, he could not stand or walk for more than 20 minutes at a time, sit for more than 30 minutes, and lift or carry more than 25 pounds. He would need to alternate positions frequently, to include lying down. The Veteran would need a computer with more than one monitor, be unable to turn to answer a phone, and writing, typing, and filing paperwork would cause increased neck and shoulder pain. His constant pain and tinnitus lead to poor sleep, which affects his concentration. Further, hearing loss and tinnitus make it difficult for him to communicate both in person and over the phone and make working in a physical environment dangerous. If the Veteran were to try and work, he would need to miss or leave early three or more days per month, require extra breaks daily, and frequently be unable to maintain focus for most of a workday.

Dr. B.T. further opined that it was at least as likely as not that the Veteran has been unable to maintain substantially gainful employment as a result of his service-connected left knee arthritis, cervical spine degenerative joint and disc diseases with intervertebral disc syndrome, right shoulder rotator cuff tendonitis, left ankle
innitus lead to poor sleep, which affects his concentration. Further, hearing loss and tinnitus make it difficult for him to communicate both in person and over the phone and make working in a physical environment dangerous. If the Veteran were to try and work, he would need to miss or leave early three or more days per month, require extra breaks daily, and frequently be unable to maintain focus for most of a workday.

Dr. B.T. further opined that it was at least as likely as not that the Veteran has been unable to maintain substantially gainful employment as a result of his service-connected left knee arthritis, cervical spine degenerative joint and disc diseases with intervertebral disc syndrome, right shoulder rotator cuff tendonitis, left ankle deltoid ligament sprain, bilateral hearing loss, tinnitus, right knee strain with degenerative arthritis (painful motion), and right knee strain with degenerative arthritis (limited extension) since at least August 2017, the date of claim.

As noted above, entitlement to a TDIU is a legal determination, not a medical one. Geib, 733 F.3d at 1354. Nevertheless, the Board finds that the evidence of record, including the evidence addressing the Veteran's functional and occupational impairment, is in relative equipoise regarding whether his service-connected disabilities and the medications used to treat them have precluded him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history throughout the claim period. Accordingly, a TDIU is warranted effective August 16, 2017, and the claim is granted.

2. Basic eligibility for DEA is granted effective August 16, 2017.

For the purposes of?DEA, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability.? 38?U.S.C. §?3501;?38?C.F.R. §§?3.807, 21.3021. There are other avenues through which basic eligibility may be established; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty.? Id.?

The AOJ found the Veteran met the basic eligibility requirements for?DEA effective January 4, 2024, based on its award of a combined schedular rating of 100 percent effective that date. See March 31, 2025 Rating Decision - Narrative. However, as explained above, the Board finds the evidence supports entitlement to a TDIU effective August 16, 2017. Therefore, the Veteran is also eligible for DEA effective that date.

Increased Ratings

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.2, 4.41. However, where an increase in the disability rating, rather than the propriety of the initial rating, is at issue, the present level of disability is of primary importance, and past medical reports should not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Regardless of whether an appeal stems from disagreement with the initial rating assigned following an award of service connection or from disagreement with the rating assigned following a claim for increase, separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)).

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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

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).

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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. If it is, it will be necessary for the Board to apply the old and new versions of the regulation to different periods of the claim. This differentiation is necessary because, under 38 U.S.C. § 5110(g), a more favorable revised regulation cannot be applied earlier than the effective date of the amendment. See VAOPGCPREC 3 2000; DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, to the extent the diagnostic codes applicable in this appeal were affected by the amendments to 38 C.F.R. § 4.71a, the Board will consider the old rating criteria prior to February 7, 2021. From February 7, 2021, the Board will consider both the old and new rating criteria and apply the more favorable criteria.

3. Effective August 16, 2017, an initial rating of 30 percent, but no higher, for a cervical spine disability is granted.

The Veteran's cervical spine disability was initially assigned a 20 percent rating effective August 16, 2017 under DC 5242. 38 C.F.R. § 4.71a. It has been rated as 30 percent disabling from October 12, 2023.

DC 5242 provides for evaluation under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).

Under the General Rating Formula, and as pertinent here, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A
evaluation under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).

Under the General Rating Formula, and as pertinent here, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note (1).

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5).

Turning to the evidence, the Veteran underwent VA examinations in both September and November 2017. The September examiner found that the Veteran's forward flexion was limited to 15 degrees, but there was no evidence of ankylosis. The Veteran reported doing physical therapy but did not report medication use. The November examiner noted that the Veteran's forward flexion was limited to 30 degrees, with no evidence of ankylosis. The Veteran reported using multiple medications to treat his symptoms.

The Veteran was afforded another VA examination in October 2023. He stated he experienced neck stiffness requiring him to take pain medication. He denied flareups. Forward flexion to 30 degrees was observed initially, with forward flexion estimated to be to 10 degrees with repeated use over time. There was no ankylosis.

The Veteran was also afforded a VA examination in connection with his claim in February 2024. Forward flexion was limited to 15 degrees. There was no additional loss of range of motion during flare-ups or after repeated use over time. The examiner made no findings of ankylosis related to the spine. The examiner also noted functional limitations such as difficulties driving. The Veteran reported treating it with rest but did not report medication use.

In consideration of the available evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's limitation of motion of the cervical spine approximated the criteria for a 30 percent rating (i.e., was manifested by forward flexion limited to 15 degrees or less), throughout the claim period (since August 16, 2017). However, the evidence persuasively weighs against an award of a disability rating in excess of 30 percent for the Veteran's service-connected cervical spine disability. At no point has the evidence demonstrated that the Veteran's neck disability causes unfavorable ankylosis or the functional equivalent thereof.

The Board has also considered whether the Veteran's service-connected cervical spine disability warrants the assignment of additional ratings based on associated neurologic abnormalities. The Board notes that the Veteran is already in receipt of a separate 20 percent rating for right upper extremity radiculopathy, effective January 4, 2024, as secondary to his service-connected cervical spine disability, and review of that rating was not sought. The evidentiary record before the Board does not establish entitlement to additional separate ratings.

In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine and has applied it in assigning a 30 percent rating during the earlier portion of the claim period. However, as to the remaining aspects of the claim, the evidence is persuasively against assignment of a higher rating or additional separate ratings, and the doctrine is not applicable.

(continued on next page)

4. An initial disability rating in excess of 10 percent for service-connected right knee
rating for right upper extremity radiculopathy, effective January 4, 2024, as secondary to his service-connected cervical spine disability, and review of that rating was not sought. The evidentiary record before the Board does not establish entitlement to additional separate ratings.

(continued on next page)

4. An initial disability rating in excess of 10 percent for service-connected right knee strain (painful motion) is denied.

5. An initial compensable disability rating for service-connected right knee strain (limited extension) is denied.

6. An initial 20 percent rating, but no higher, for right knee instability is granted effective August 16, 2017.

The Veteran's right knee disability is currently assigned a 10 percent rating for painful motion of the knee under DC 5003-5260, and a noncompensable rating for limitation of extension under DC 5003-5261, both effective August 16, 2017 (the effective date of the award of service connection for the right knee disability). He is also in receipt of a 10 percent rating for instability from January 4, 2024, under DC 5257. Following review of the evidentiary record, the Veteran is entitled to a 20 percent rating for instability throughout the claim period (i.e., since August 16, 2017). Higher or additional separate ratings are not warranted.

Regarding rating the knee based on limitation of motion, a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. When extension is limited to 5 degrees, a 0 percent rating is warranted; when extension is limited to 10 degrees a 10 percent rating is warranted; when extension is limited to 15 degrees a 20 percent rating is warranted; and higher ratings warrant even more limitation of extension. 38 C.F.R. § 4.71a, DC 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II.

Regarding lateral instability or recurrent subluxation of the knee, prior to February 7, 2021, DC 5257 provided a 10 percent evaluation for slight lateral instability or recurrent subluxation of the knee, a 20 percent evaluation was warranted for moderate lateral instability or recurrent subluxation of the knee, and a 30 percent evaluation was warranted for severe lateral instability or recurrent subluxation of the knee. See 38 C.F.R. § 4.71a, DC 5257 (2020).

The terms "slight," "moderate," and "severe" are not defined in the pre-amended diagnostic code and, therefore, rather than applying a mechanical formula, the Board must evaluate all the evidence in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.6. The use of the terminology within a VA examination report is not in and of itself dispositive. According to Merriam Webster's Collegiate Dictionary 999 (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.

Effective February 7, 2021, DC 5257 was amended to provide for more explanation as to the terminology. Although not effective until February 7, 2021, the Board finds the definitions within the amended DC 5257 criteria instructive and, therefore, will apply either the Merriam-Webster dictionary definition or the amended DC 5257 definitions, whichever is most favorable for the Veteran in light of the evidence.

In particular, under the amended DC 5257, with regard to recurrent subluxation or lateral instability, a 10 percent evaluation 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 rating is assigned for either (a) a sprain, incomplete ligament tear, or repaired
, will apply either the Merriam-Webster dictionary definition or the amended DC 5257 definitions, whichever is most favorable for the Veteran in light of the evidence.

A 20 percent rating is assigned for either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or, (b) an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

Finally, a 30 percent rating is assigned for an 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.

With regard to patellar instability, a 10 percent rating is assigned 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 assigned 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. Finally, a 30 percent rating is assigned 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) clarifies 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). See 38 C.F.R. § 4.71a, DC 5257 (2022).

Importantly in this matter, objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). By the same token, the Board is mindful that the Veteran is competent to report what he perceives as instability. Id.

Turning to the evidence of record, a September 2017 VA knee examination documented flexion from 0 to 95 degrees and extension from 95 to 0 degrees during flares. The examiner noted no persistent instability, or recurrent patellar instability. There was no ankylosis. Medication use was not reported.

A November 2017 VA examination documented flexion from 5 to 115 degrees and extension from 115 to 5. There was no additional loss of function after repetitive use testing. There was no estimated additional loss of motion after periods of repetitive use or during flare ups. The examiner noted no persistent instability, or recurrent patellar instability. There was no ankylosis. The Veteran reported his knee gave out two to three times per week. He reported regular use of a brace and constant use of a cane. He reported using oxycodone for pain.

An October 2023 VA examination documented initial flexion to 120 degrees and initial extension to 0 degrees. Following repeated use over time and during flares, range of motion was estimated to be limited to flexion of 90 degrees. Extension remained at 0 degrees. There was no objective instability, and no prescriptions for assistive devices were required. The Veteran reported his flare ups occurred two to four times per week and lasted 6 to 12 hours. They were precipitated by overuse, sitting, or standing, and were relieved by pain medication. The Veteran reported his knee hurt "with just about everything."

A February 2024 VA examination documented flexion to 85 degrees and extension to 5 degrees estimated after repetitive use. The examiner estimated the same limitation of motion following repeated use over time
degrees and initial extension to 0 degrees. Following repeated use over time and during flares, range of motion was estimated to be limited to flexion of 90 degrees. Extension remained at 0 degrees. There was no objective instability, and no prescriptions for assistive devices were required. The Veteran reported his flare ups occurred two to four times per week and lasted 6 to 12 hours. They were precipitated by overuse, sitting, or standing, and were relieved by pain medication. The Veteran reported his knee hurt "with just about everything."

A February 2024 VA examination documented flexion to 85 degrees and extension to 5 degrees estimated after repetitive use. The examiner estimated the same limitation of motion following repeated use over time. The Veteran noted his knee buckles on him, and the examiner noted persistent right knee instability, without a ligament tear. The Veteran denied flare ups and did not report current medication use.

Based on the medical evidence of record, the Board does not find that higher ratings are warranted for the Veteran's right knee disability based on limitation of flexion or extension. The competent medical evidence of record does not show compensable limited motion, even when considering the impact of flare-ups or repetitive use over time and discounting any medication use. The Board finds the record is sufficient to assess the severity of the Veteran's limitation of motion in the absence of medication, as he did not report using medication during two of the four examinations. The Board also notes that more than one compensable rating cannot be awarded for painful motion in the absence of compensable limitation of motion. 38 C.F.R. § 4.14.

Regarding instability, with resolution of reasonable doubt in the Veteran's favor, moderate instability has been present throughout the claim period, based on his reports, as early as the November 2017 VA examination, of his knee giving out and regular use of a brace. A higher rating is not warranted under the old or current criteria, as there was no surgical repair, no diagnosed ligament sprain or tear, and no reported falls. The Board would expect to see a diagnosed sprain or tear, or more reported falls due to the knee giving out, to warrant a finding of severe instability under the old criteria. The requirements for a 30 percent rating under the current criteria are also not met.

The Board has considered other potentially applicable diagnostic codes, such as ratings based on ankylosis of the knee (DC 5256), dislocation of the semilunar cartilage (DC 5258), removal of the semilunar cartilage (DC 5259), impairment of the tibia or fibula (DC 5262), or genu recurvatum (DC 5263). However, the evidence does not suggest that such pathologies are present in this matter, and therefore these rating criteria cannot be applied to award higher or separate ratings.

In sum, the Board finds that the Veteran's right knee disability was at worst manifested by painful motion and moderate instability during the period on appeal. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine and has applied it in assigning a 20 percent rating for right knee instability. However, as to the remaining aspects of the claim, the evidence is persuasively against assignment of higher or additional separate ratings, and the doctrine is not applicable.

L. STEPANICK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Barbato.

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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