Citation Nr: A26029068 Decision Date: 03/31/26 Archive Date: 03/31/26 DOCKET NO. 191114-438040 DATE: March 31, 2026 ORDER A separate 20 percent, but no higher, rating from April 16, 2015 for left knee instability under Diagnostic Code 5257 is granted, subject to the regulations governing the payment of monetary awards. A separate 20 percent, but no higher, rating from April 16, 2015 for right knee instability under Diagnostic Code 5257 is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease, prior to January 30, 2024, and in excess of 30 percent from July 1, 2024 is remanded. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease prior to February 4, 2025 and in excess of 50 percent from August 1, 2025 is remanded. ? FINDINGS OF FACT 1. The Veteran's left knee has been manifested throughout the period on appeal by moderate lateral instability. 2. The Veteran's right knee has been manifested throughout the period on appeal by moderate lateral instability. CONCLUSIONS OF LAW 1. From April 16, 2015, the criteria for a separate 20 percent, but no higher, rating for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. From April 16, 2015, the criteria for a separate 20 percent, but no higher, rating for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1990 to January 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his November 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran selected the Hearing with a Veterans Law Judge lane. A Board hearing was held on October 1, 2024. Therefore, the Board may only consider the evidence of record at the time of the August 2019 AOJ decision on appeal, as well as any evidence submitted by the Veteran or attorney 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Initially, the Board notes that the August 2019 AOJ decision awarded service connection for left and right knee degenerative joint disease, each evaluated as 10 percent disabling, effective from April 16, 2015. The knee disabilities were evaluated under hyphenated Diagnostic Code 5003-5260. Subsequent to the Veteran's VA Form 10182 to appeal the ratings assigned by the August 2019 AOJ decision, he filed VA Forms 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking temporary total ratings for the knees due to undergoing surgery. For the left knee, an October 2024 rating decision awarded an increased 100 percent rating due to surgical or other treatment necessitating convalescence, effective January 30, 2024, and a 30 percent rating effective July 1, 2024 under Diagnostic Code 5055. For the right knee, a June 2025 rating decision awarded a 100 percent rating due to surgical or other treatment necessitating convalescence, effective February 4, 2025, and a 50 percent rating effective August 1, 2025 under Diagnostic Code 5256. Although the Board is limited in the evidence it can review regarding the basis for the increased staged ratings, the Board is bound by the favorable findings in the October 2024 and June 2025 rating decisions. See Green v. McDonough, 37 Vet. App. 127, 136 (2024) (finding that a decision by the AOJ is not evidence). Thus, the Board has characterized the appeal accordingly, to include the periods after the temporary total ratings as being part of the appeal before the Board. ? Increased Rating - Bilateral Knee Disabilities - Instability The Veteran and his attorney contend the Veteran is entitled to higher ratings for his bilateral knee disabilities. See October 2024 Board Hearing Transcript. As indicated above, the Board is remanding the appeal regarding entitlement to an increased rating for right and left knee disabilities pursuant to the assigned Diagnostic Codes for further development. As will be explained below, the evidence of record reflects that the Veteran is entitled to 20 percent, but no higher, separate ratings for instability of the knees, under Diagnostic Code 5257, and the Board is proceeding with a decision on that portion of the increased rating claims to ensure the Veteran receives compensation for such impairment as early as possible. Thus, the decision herein will discuss the legal criteria and evidence relevant to evaluation under Diagnostic Code 5257. 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating criteria for subluxation and lateral instability under Diagnostic Code 5257 were revised during the course of the Veteran's appeal, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Under Diagnostic Code 5257 effective prior to February 7, 2021, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The words "mild," "moderate," and "severe" as used in the Diagnostic Code are not defined in the Rating Schedule. According to Merriam Webster's Collegiate Dictionary 999 (11th ed. 2007), "slight" means small in amount, "moderate" means limited in scope or effect, and "severe" means very painful or harmful or of a great degree. Under the amended rating criteria for patellar instability under Diagnostic Code 5257, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a. Under the amended rating criteria for recurrent subluxation or lateral instability under Diagnostic Code 5257, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for 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. Id. Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. Additionally, VA's Office of General Counsel has determined that amended rating criteria can be applied only for the period from and after the effective date of the regulatory change. The Board can apply only the former regulation to rate the disability for periods preceding the effective date of the regulatory change. However, the former rating criteria may be applied prospectively, beyond the effective date of the new regulation. See VAOPGCPREC 3-2000. The Veteran may also be assigned separate ratings for limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). During the applicable evidentiary period, the Veteran attended VA examinations in July 2015 and May 2019 for evaluation of his bilateral knee disabilities. The VA examination reports reflect no recurrent subluxation or lateral instability bilaterally. Joint stability testing at the May 2019 VA examination was normal. Joint stability testing at the July 2015 VA examination was normal for the left knee. Regarding the right knee, the VA examiner at the July 2015 examination noted that instability testing was indicated but was unable to be performed due to pain. The May 2019 VA examination report reflects no use of an assistive device. The July 2015 VA examination report reflects regular use of a brace for his right knee disability. The Veteran reported using medications for his bilateral knee disabilities at both VA examinations. The May 2019 VA examiner noted that the functional impact of the Veteran's bilateral knee disabilities is that the Veteran had an inability to sit, stand, or walk for long periods of time. The July 2015 VA examiner noted the functional impact of the Veteran's bilateral knee disabilities is that the Veteran was able to walk up to 2 blocks, stand for 30 minutes, lift up to 30 pounds, and carry 30 pounds for a short distance. Further, the examiner noted the Veteran was able to sit for prolonged periods but had to take time getting back up due to stiffness, navigated stairs slowly and required a handrail, was unable to climb a ladder, and was unable to kneel or squat. A September 2015 VA treatment record reflects the Veteran was fitted for a single point cane to help take weight off his left hip. Furthermore, the Veteran attended physical therapy during the applicable appeal period for his bilateral knee disabilities. At his October 2024 Board hearing, the Veteran reported having weakness and that he experienced about three to four falls prior to his left knee surgery. The Veteran stated further that he wore braces on both knees, which were prescribed by his doctor, and he reported having a cane. The Veteran explained further that he had instability, especially on uneven surfaces, walking through grass, or going upstairs. He indicated that he felt like his knee was going to buckle almost every day. The Board has considered whether the Veteran is entitled to a separate rating for either knee under the pre-amended and amended Diagnostic Code 5257 criteria based on evidence of instability bilaterally. The Board concludes that the Veteran is entitled to separate 20 percent ratings throughout the appeal period for the left and right knees under the pre-amended criteria based on evidence of moderate recurrent subluxation or lateral instability bilaterally. The July 2015 VA examination report reflects the Veteran uses a right knee brace. Further, the Veteran reported at the October 2024 Board hearing that he started to wear knee braces in 2014 or 2015. In addition, the Veteran reported at the Board hearing that his knees would buckle, give out on him, and he fell about three to four times during the period on appeal. The Board acknowledges that the July 2015 and May 2019 VA examination reports are silent for left knee instability, including objective evidence of instability. Regarding the right knee, the May 2019 VA examination report is silent for instability, but the July 2015 VA examination report reflects that instability was indicated but joint stability testing was unable to be performed due to pain. The Court has held that Diagnostic Code 5257 does not require objective evidence of instability. English v. Wilkie, 30 Vet. App. 347 (2018). Here, the Veteran's reports of experiencing instability and giving way and the evidence of using braces on his knees throughout the appeal period beginning April 16, 2015 are sufficient to reflect moderate lateral instability in the left knee and right knee. A rating in excess of 20 percent is not warranted for either knee under Diagnostic Code 5257 during this period as the evidence does not more nearly approximate severe lateral instability or recurrent subluxation in which the Veteran's symptoms described herein rise to the level of very painful or harmful or of a great degree. For example, the May 2019 VA examination report reflects no objective evidence of instability with instability testing. Although the Veteran testified that he felt like his knee would buckle almost daily, he indicated that he only experienced three to four falls prior to having his knee surgery. Thus, the evidence persuasively weighs against a finding of severe lateral instability or recurrent subluxation. Regarding the amended rating criteria effective February 7, 2021 for Diagnostic Code 5257, the record fails to show evidence of a left or right knee disability involving the patellofemoral complex or a sprain or ligament tear. Thus, the evidence is persuasively against a higher rating under the amended Diagnostic Code 5257 rating criteria. Additionally, here, the Board acknowledges the Veteran's Board hearing testimony that VA prescribed a cane in 2017 or 2018. However, a review of the VA treatment records illustrates that a VA provider prescribed a cane in September 2015 for the purposes of taking weight off of his left hip, rather than because of his knee disabilities. Irrespective of this, as the Veteran's left and right knee disabilities did not involve the patellofemoral complex or a sprain or ligament tear, a higher rating is not warranted under the amended Diagnostic Code 5257. In summary, the Board finds the Veteran is entitled to separate 20 percent, but no higher, ratings for instability for the left and right knees under Diagnostic Code 5257 throughout the period on appeal. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease, prior to January 30, 2024, and in excess of 30 percent from July 1, 2024 is remanded. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease prior to February 4, 2025 and in excess of 50 percent from August 1, 2025 is remanded. As noted above, during the applicable evidentiary period, the Veteran attended VA examinations in July 2015 and May 2019 for evaluation of his bilateral knee disabilities. At the July 2015 VA examination, the Veteran reported daily bilateral knee pain at an 8 to 10 out of 10. He reported the pain was sharp and stabbing and worse at night or when relaxing. Further, he reported that navigating stairs and fast movements aggravated the pain. The Veteran reported flare-ups during winter and when lying down, with pain always at a 10 out of 10 during flare-ups. He indicated that he took three different types of pain medication just to keep going. The July 2015 VA examiner noted the functional impact of the Veteran's bilateral knee disabilities is that the Veteran was able to walk up to 2 blocks, stand for 30 minutes, lift up to 30 pounds, and carry 30 pounds for a short distance. Further, the examiner noted the Veteran was able to sit for prolonged periods but had to take time getting back up due to stiffness, navigated stairs slowly and required a handrail, was unable to climb a ladder, and was unable to kneel or squat. The examiner indicated that she was unable to say without mere speculation regarding whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during flare-ups because such "would be void of any objective observation." Thus, the examiner did not provide any estimates regarding range of motion after repeated use over time or during flare-ups. At the May 2019 VA examination, the Veteran reported very painful movement, swelling, and weakness. He reported completing physical therapy and taking ibuprofen. He indicated that bending and flexing the knees caused a lot of pain and that driving, walking, and sitting causes constant pain. The Veteran reported no flare-ups at the May 2019 VA examination. The examiner indicated that pain would result in flexion to 80 degrees with repeated use over time. The examiner did not complete the section of the examination report regarding flare-ups. The examiner indicated that the functional impact of the knee conditions was that they caused an inability to sit, stand, or walk for long period of time. The Board finds that the July 2015 examination report is inconsistent with Sharp v. Shulkin, as the examiner indicated that she could not give an opinion on whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups without resorting to speculation essentially because the Veteran was not being examined under those conditions. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (stating that the Board could treat as adequate an examiner's statement that he or she could not offer an opinion without resorting to speculation if it is clear that an examiner has "considered all procurable and assembled data" before stating that an opinion cannot be reached and the inability to provide an opinion without resorting to speculation "reflect[s] the limitation of knowledge in the medical community at large" and not a limitation, whether based on lack of expertise, insufficient information, or unprocured testing, of the individual examiner (citing Jones v. Shinseki, 23 Vet. App. 382, 390 (2010))). The record does not indicate that the examiner considered the Veteran's lay statements. Furthermore, because the examiner did not provide estimated ranges of motion during flare-ups at the May 2019 examination, since flare-ups were not reported at that time, the May 2019 examination report does not fully address the inadequacy of the July 2015 examination report. Thus, as it was a pre-decisional duty to assist error that adequate opinions were not obtained regarding functional impairment after repeated use over time and during flare-ups at the time of the July 2015 VA examination, remand is needed to correct this error by obtaining a retrospective opinion. The matters are REMANDED for the following action: Forward the Veteran's claims file to an appropriate clinician for review and to obtain a retrospective opinion on the severity, frequency, and duration of any flare ups, and the degree of functional loss during flare ups and after repeated use over time at the time of the July 2015 VA examination. The examiner should provide an estimate, if at all possible, of the additional impairment due to flare ups based on other evidence of record and the Veteran's statements. The clinician should estimate the Veteran's functional impairment absent the ameliorative effects of medication. In this regard, the examiner must ensure that any measurements provided, estimated ranges of motion, or functional impairments discussed are made using the Veteran's baseline level of disability without consideration of the beneficial effects of medication. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale for all opinions must be provided. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.