judge_norm: LESLEY A REIN

condition: insomnia

condition: heart

condition: headache

condition: gi

condition: herbicide

condition: hip

text:
Citation Nr: 26003000
Decision Date: 03/05/26	Archive Date: 03/05/26

DOCKET NO. 15-16 190
DATE: March 5, 2026

ORDER

Entitlement to service connection for chronic fatigue syndrome (CFS) is denied.

Entitlement to service connection for a recurrent sleep disability, to include insomnia, is denied.

Entitlement to service connection for a recurrent skin disability, to include chloracne, is denied.

Entitlement to service connection for amyotrophic lateral sclerosis (ALS) is denied.

Entitlement to service connection for a recurrent muscle disability is denied.

Entitlement to service connection for bilateral ankle, knee, wrist, elbow, and right shoulder disabilities (previously characterized as a recurrent joint disability) is denied.

Entitlement to service connection for a heart condition (previously characterized as a recurrent cardiovascular disability) is denied.

REMANDED

Entitlement to service connection for migraine headaches is remanded.

Entitlement to service connection for a chronic gastrointestinal condition, diagnosed as gastroesophageal reflux disease (GERD) and esophageal ulcer, is remanded.

Entitlement to a recurrent disability manifested by short-term memory loss claimed as the result of herbicide agent and toxic chemical exposure is remanded.

Entitlement to service connection for residuals of prostate cancer, to include erectile dysfunction (previously characterized as a recurrent prostate disability) is remanded.

Entitlement to service connection for bilateral hip strain (previously characterized as recurrent joint disability) is remanded.

FINDINGS OF FACT

1. Chronic fatigue has not been shown during the period on appeal or proximate thereto.

2. A sleep disability has not been shown during the period on appeal or proximate thereto.

3. A skin disability has not been shown during the period on appeal or proximate thereto.

4. A diagnosis of ALS has not been shown during the period on appeal or proximate thereto.

5. A muscle disability has not been shown during the period on appeal or proximate thereto.

6. A bilateral ankle, knee, wrist, elbow, and/or right shoulder has not been shown during the period on appeal or proximate thereto.

7. A heart disorder did not originate in service, and is not otherwise etiologically related to service, to include any toxic exposure risk activity.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

2. The criteria for entitlement to service connection for a recurrent sleep disability, to include insomnia, have not been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

3. The criteria for entitlement to service connection for a recurrent skin disability, to include chloracne, have not been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

4. The criteria for entitlement to service connection for ALS have not been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

5. The criteria for entitlement to service connection for a recurrent muscle disability have not been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

6. The criteria for entitlement to service connection for bilateral ankle, knee, wrist, elbow, and right shoulder disabilities (previously characterized as a recurrent joint disability) have not been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

7. The criteria for entitlement to service connection for a heart condition have not been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1976 to February 1979.

These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In May 2023, the Board remanded these matters to obtain the Veteran's military personnel records (MPRS).  The AOJ obtained the Veteran's MPRs and they have been associated with the claims file. The Board finds that the RO substantially complied with the recent remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The Veteran was scheduled for a hearing before a Veterans Law Judge on March 27, 2023.  However, in a February 2023 correspondence, the Veteran, through his then representative, waived his request for a hearing.  See February 15, 2023 Appellate Brief.  Accordingly, his request for a hearing is deemed withdrawn.  See 38 C.F.R. �� 20.600(b); 20.704(d).

Pursuant to 38 C.F.R. � 20.6(a)(2), after an appeal has been certified to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion and motion must be in writing and must comply with the criteria set forth in 38 C.F.R. � 20.6(a)(2). In accordance with the regulatory provision, the Veteran's attorney filed a Motion to Withdraw Representation in September 2025. The Board finds that the Motion to Withdraw Representation is compliant with 38 C.F.R. � 20.6(a)(2) because it includes: (1) the attorney's explanation that the decision to withdraw representation was due the failure of the Veteran to cooperate with the proper preparation and presentation of the appeal, which make the continuation of representation impossible, impractical, or unethical; (2) the Veteran's name and VA file number, and (3) a signed statement certifying that a copy of the motion was sent to the Veteran. Therefore, good cause was shown, and the Motion to Withdraw Representation is granted. No new appointment of representation has been received. Accordingly, the Veteran is unrepresented.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. � 1110; 38 C.F.R. � 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time her claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition.

When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

1. Entitlement to service connection for CFS is denied.

2. Entitlement to service connection for a recurrent sleep disability, to include insomnia, is denied.

3. Entitlement to service connection for a recurrent skin disability, to include chloracne, is denied.

4. Entitlement to service connection for ALS is denied.

5. Entitlement to service connection for a recurrent muscle disability is denied.

6. Entitlement to service connection for bilateral ankle, knee, wrist, elbow, and right shoulder disabilities (previously characterized as a recurrent joint disability) is denied.

The Veteran seeks service connection for CFS, a recurrent sleep disability, a skin disability, ALS, a recurrent muscle disability, and joint disabilities, to include of the bilateral ankles, knees, wrist, elbows, and the right shoulder, all of which he contends originated during active service due to his military duties as a soil analyst and associated exposure to herbicide agents and other toxic chemicals in Germany and the United States.

While in remand status, the AOJ obtained a toxic exposure risk activity (TERA) memorandum which found that the Veteran had possible exposures to heavy equipment/machinery noise, engine exhaust, dust, industrial hazardous materials, and asbestos, due to his military occupational specialty (MOS) of Army Materials Quality Specialist.

The AOJ then obtained CFS, skin, ALS, muscle injuries, and ankle, knee, wrist, elbow, and shoulder examinations and opinions.  The examiner determined that the Veteran had no diagnosed CFS, sleep, skin, ALS, muscle injuries, ankle, knee wrist, elbow, or right shoulder disabilities. Regarding a sleep disability, the examiner noted the Veteran's reported subjective history of insomnia, but found no diagnosis.

After a thorough review of the evidence of record, the Board finds that the Veteran has not been diagnosed with CFS, sleep, skin, ALS, muscle injuries, and ankle, knee, wrist, elbow, and/or right shoulder disabilities at any time during the appeal period to support his claims for service connection.  The Board acknowledges that the Veteran was diagnosed with fracture, left clavicle with acromioclavicular separation.  However, service connection for the left shoulder has been in effect since 1997 and is not on appeal before the Board.

Proof of a current disability is a threshold to establishing service-connection. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

No underlying CFS, sleep, skin, ALS, muscle injuries, and ankle, knee, wrist, elbow, and/or right shoulder disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

In making these findings, the Board acknowledges that the Veteran has reported bilateral knee and wrist pain. See May 2024 VA Examinations. In Saunders v. Wilkie, 886 Fed. Cir. 1356 (2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. � 1110. However, the Federal Circuit did not hold that the veteran could demonstrate service connection simply by asserting subjective pain. Rather, to establish a disability, the veteran's pain must amount to a functional impairment. The Federal Circuit held that to establish the presence of a disability, the veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 28. In Wait v. Wilkie, 33 Vet. App. 8 (2020), the Court of Appeals for Veterans Claims (Court) clarified that under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), there must be competent evidence demonstrating that the claimed symptoms result in functional impairment that in fact affects the veteran's earning capacity. In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.

In this case, the Board acknowledges the Veteran's assertion that he has bilateral knee and wrist pain. However, the Board finds that the Veteran has not presented any competent evidence that his bilateral knee and wrist pain results in functional impairment that in fact affects his earning capacity.

The Veteran is certainly competent to report his history of bilateral knee and wrist pain, and any treatment that he may have undergone. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not presented any competent and credible evidence of a current diagnosis for a bilateral knee or wrist disability, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that he has an underlying chronic disability.

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for CFS, sleep, skin, ALS, muscle injuries, and ankle, knee, wrist, elbow, and/or right shoulder disabilities, is denied. 38 U.S.C. � 5107 (b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

7. Entitlement to service connection for a heart condition, diagnosed as acute, subacute, or old myocardial infarction (MI), stable angina, coronary artery disease (CAD), percutaneous coronary intervention (PCI) status post (s/p) MI, is denied.

The Veteran seeks service connection for a heart condition which he contends originated during active service due to his military duties as a soil analyst and associated exposure to herbicide agents and other toxic chemicals in Germany and the United States.

As discussed above, the Veteran's probable exposures are limited to heavy equipment/machinery noise, engine exhaust, dust, industrial hazardous materials, and asbestos.  See January 2, 2024 VA TERA Memorandum

The Veteran's service treatment records (STRs) are silent as to treatment or diagnosis for a heart condition.

The Veteran reported that his heart condition onset in 2009/2010, noting that he had a heart attack some time between 2009/2010.  See August 2024 VA Heart Conditions Examination

The Veteran does not contend, and the record does not show, that he had active service in the Republic of Vietnam or any other location where there is currently a presumption for exposure to herbicides. 38 C.F.R. � 3.307; Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act), 117 P.L. 168 (enacted Aug. 10, 2022). The Veteran's service personnel records only show that his foreign service was performed in Germany. Therefore, in-service exposure to herbicide agents is not presumed, as Germany is not included in service locations where exposure to herbicides is presumed.

Without a presumption of exposure, there would need to be credible and competent evidence factually showing the Veteran was exposed to herbicides, on a facts-found basis.

The Veteran asserts that he was exposed to herbicides at Fort Dix, Fort Belvoir, and in Germany.  The Department of Defense (DOD) has not identified any of these as locations that tested, stored, and/or disposed of herbicide agents. See https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/outside-vietnam.asp; https://www.publichealth.va.gov/PUBLICHEALTH/exposures/agentorange/locations/tests-storage/usa.asp.

In January 2024, the AOJ attempted to verify the Veteran's claimed exposures.  A toxic exposure risk activity (TERA) memorandum determined that the Veteran had possible exposure to heavy equipment/machinery noise, engine exhaust, dust, industrial hazardous materials, and asbestos, in his MOS of army materials quality specialist.  The memo did not indicate any exposure to herbicides further supporting a finding that he was not exposed to Agent Orange during service. See January 2024 TERA Memorandum

Consequently, the Board finds that the evidence does not demonstrate that the Veteran was exposed to herbicide agents during military service.

In August 2024, the AOJ obtained a VA examination and opinion concerning the Veteran's TERA.  After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran's heart disorder was less likely than not due to any TERA, to include any related exposure as a soil analyst, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERA by the Veteran. The examiner found that there are no clear and specific or confirmed exposures which would lead to development of coronary artery disease, heart attack (MI) necessitating PCI, or stable angina identified in the TERA memorandum or medical history and literature.

The Veteran solely contends that his heart condition is related to in-service chemical and herbicide agent exposure in Germany and in the U.S. However, the Board still considered whether entitlement to service connection is warranted on other bases but finds that it is not.

The Veteran's January 1979 separation examination, apart from a left shoulder scar, was normal.  Moreover, the Veteran reported during his August 2024 VA examination that his heart condition began in 2009/2010 when he had a heart attack.  Thus, the evidence does not show a heart condition began in service, shortly after service, nor was there a continuity of symptoms from service to diagnosis. See 38 C.F.R. � 3.303, 3.307, 3.309.

Based on the foregoing, the Board finds that service connection for a heart condition is not warranted.

REASONS FOR REMAND

Unfortunately, the remaining claims must be remanded for further development to enable the Board to make a fully informed decision.

1. Entitlement to service connection for migraine headaches, claimed as the result of herbicide agent and toxic chemical exposure, is remanded.

The Veteran asserts that he has had migraine headaches since 1976.  See May 2024 VA Headaches Examination

The May 2024 VA examiner diagnosed the Veteran with migraine headaches, including migraine variants.  The examiner provided a negative TERA opinion.  Addressing service connection as directly related to the Veteran's active service, the examiner concluded that it is less likely than not that the Veteran's migraines are due to service as there is a lack of substantiating evidence supporting a nexus between the current diagnosis of migraine, including migraine variants, and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology.

The Board finds the May 2024 VA opinion to be inadequate as the examiner failed to address the Veteran's lay statements concerning an in-service onset of symptoms that have persisted since.

Therefore, remand is required to obtain an opinion that addresses the Veteran's report of an in-service onset of migraines that have persisted since.

2. Entitlement to service connection for a chronic gastrointestinal condition, diagnosed as gastroesophageal reflux disease (GERD) and esophageal ulcer, is remanded.

During the Veteran's August 2024 VA intestinal conditions examination, he reported that his symptoms onset in 1979 in the Army.  The August 2024 VA examiner provided a negative TERA opinion but failed to opine as to whether the Veteran's GERD and/or esophageal ulcer, could be related to his active service, to include the Veteran's report of an in-service onset.

Remand is required to obtain an opinion that considers the Veteran's lay reports of an in-service onset.

3. Entitlement to a recurrent disability manifested by short-term memory loss claimed as the result of herbicide agent and toxic chemical exposure is remanded.

In the January 2025 supplemental statement of the case (SSOC), the AOJ referenced a May 9, 2024, examination and opinion concerning the Veteran's claimed disability manifested by short-term memory loss.  On thorough review of the claims file, neither appear to have been associated with the claims file.

Remand is required to associate the outstanding May 2024 VA examination and opinion with the claims file.

4. Entitlement to service connection for residuals of prostate cancer, to include erectile dysfunction (previously characterized as a recurrent prostate disability), is remanded.

The Veteran underwent a VA male reproductive conditions examination in May 2024.

During the examination, the Veteran reported treatment at Banner Hospital. These private records are not in the claims file and there is no indication that the AOJ made any attempts to obtain them.  Therefore, remand is required to attempt to obtain these private records which may contain pertinent evidence.

5. Entitlement to service connection for bilateral hip strain (previously characterized as recurrent joint disability) is remanded.

As discussed above, the AOJ obtained a number of examinations and opinions concerning the Veteran's claim for a recurrent joint disability.  The May 2024 VA examiner diagnosed the Veteran with bilateral hip strain. During the exam, the Veteran reported left hip pain since his left shoulder injury in 1978 and right hip pain for the past 4 years.  The examiner provided negative opinions for bilateral hip strain, to include as due to the Veteran's TERA.  However, in providing the negative opinions, the examiner noted that the Veteran's bilateral hip strain is a musculoskeletal condition and that such conditions are due to wear, tear and stress on the body, often due to physical demands of service.

As the examiner seemed to indicate a relationship between the Veteran's bilateral hip strain and his active service, remand is required to obtain addendum opinion.

Accordingly, the matters are REMANDED for the following actions:

1. Obtain a medical opinion concerning the nature and etiology of the Veteran's migraine headaches.

The examiner should answer the following:

(a)	Opine whether the Veteran's migraines onset during his active-duty service, to include the Veteran's report of an in-service onset in 1976?

The examiner must specifically consider and address the following evidence:

"	Service treatment records (STRs) documenting the Veteran's report of nausea, vomiting, and headaches, since that morning.  See September 8, 1977 STR

"	The Veteran's assertion that he has had migraine headaches since 1976.  See May 2024 VA Headaches Examination

2. Then, obtain a medical opinion concerning the nature and etiology of the Veteran's GERD and ulcer of the esophagus.

(a)	Opine whether the Veteran's GERD onset during his active-duty service, to include the Veteran's report of an in-service onset in 1979?

The examiner must specifically consider and address the following evidence:

"	Service treatment records (STRs) documenting treatment for gastroenteritis.  See August 5, September 8, 1977, September 28 and October 31, 1978 STRs

"	The Veteran's assertion that his GERD and esophageal varices onset in the Army in 1979.  See August 2024 VA Intestinal Conditions Examination

3. Contact the Veteran and request that he provide information as to any outstanding private treatment record, to include at Banner Hospital, relevant to his claim for service connection for residuals of prostate cancer. After obtaining the necessary authorization from the Veteran, the AOJ must make reasonable efforts to obtain any identified records.

4. Then, obtain a medical opinion concerning the nature and etiology of the Veteran's bilateral hip strain.

The examiner should answer the following:

(a)	Opine whether the Veteran's bilateral hip strain onset during his active-duty service?

The examiner must specifically consider and address the following evidence:

"	The Veteran's report of left hip pain since his in-service left shoulder injury in 1978 and his report of right shoulder pain that onset in the prior 4 years.  See May 2024 VA Hip Examination

"	The May 2024 VA examiner's negative TERA opinion noting that the Veteran's bilateral hip strain is a musculoskeletal condition and that such conditions are due to wear, tear and stress on the body, often due to physical demands of service.  See May 2024 VA Opinion

A complete rationale must be provided for any opinion(s) offered.

The Board emphasizes that it is not determining whether or not the Veteran's statements in support of his claims are credible at this time, as the additional development set forth in the remand directives could impact that determination. Although the Board is requesting medical opinion regarding the claims, this is for thoroughness and not based on a finding as to credibility.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board                                                                    C. Gates

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.


series: legacy

judge_norm: LAURA E COLLINS

judge_role: Veterans Law Judge

disposition: granted

condition: knee

disposition: denied

text:
Citation Nr: 26004000
Decision Date: 03/31/26	Archive Date: 03/31/26

DOCKET NO. 14-39 697
DATE: March 31, 2026

ORDER

From January 22, 2013 to June 30, 2022, entitlement to a 20 percent rating, and no higher, for left knee subluxation under Diagnostic Code (DC) 5257 is granted.

From July 1, 2022, entitlement to a 30 percent rating, and no higher, for left knee subluxation under DC 5257 is granted.

From January 22, 2013 to November 13, 2023, entitlement to a 10 percent rating, and no higher, is granted for painful motion of the left knee under DC 5260, subject to the laws and regulations governing the award of monetary benefits.

For the entire appeal period, entitlement to a rating in excess of 10 percent for left knee limitation of extension or flexion is denied.

Entitlement to a compensable rating for a left knee scars under DC 7802 is denied.

Entitlement to a rating in excess of 10 percent for left knee scars under DC 7804 is denied.

FINDINGS OF FACT

1. From January 22, 2013 through June 30, 2022, the Veteran's left knee was manifested by moderate recurrent subluxation.

2. From July 1, 2022, the Veteran's left knee was manifested by severe recurrent subluxation.

3. From January 22, 2013 through November 13, 2023, the Veteran had left knee limitation of flexion with painful motion, but flexion was not limited to 45 degrees or less. During this period, extension was not limited.

4. From November 14, 2023, the Veteran had left knee painful motion, and met the criteria for noncompensable limitation of extension under DC 5261. He did not meet the criteria for a compensable rating for limitation of flexion under DC 5260.

5. The Veteran's left knee scars covered a total area of less than 39 sq. cm. (6 sq. inches) throughout the period on appeal.

6. The Veteran had no more than two painful left knee scars at any time during the period on appeal. His left knee scars were not unstable at any time during the period on appeal.

CONCLUSIONS OF LAW

1. From January 22, 2013 through June 30, 2022, the criteria for a 20 percent rating, and no higher, for left knee subluxation are met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DC 5257.

2. From July 1, 2022, the criteria for a 30 percent rating, and no higher, for left knee subluxation are met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DC 5257.

3. From January 22, 2013 through November 13, 2023, the criteria for a 10 percent minimum compensable rating, and no higher, for left knee painful motion are met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5260.

4. The criteria for a rating in excess of 10 percent for left knee limitation of extension or flexion are not met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DC 5260, 5261.

5. The criteria for a compensable disability rating for left knee scars under DC 7802 are not met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.118, DC 7802.

6. The criteria for a disability rating in excess of 10 percent for left knee scars under DC 7804 are not met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.118, DC 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2006 to October 2007.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

The March 2013 decision granted a 10 percent rating for left knee subluxation effective January 22, 2013 under DC 5257. A July 2013 decision then awarded a 20 percent rating for left knee subluxation effective April 24, 2013 under DC 5257. The AOJ also awarded a separate 10 percent rating for left knee tendinopathy with painful motion effective April 24, 2013 under DC 5260.

A hearing was held in July 2022 with the undersigned Veterans Law Judge; a transcript has been associated with the record. The issue was remanded by the Board in November 2022, May 2023, and February 2024 for additional development. While on remand, an October 2024 AOJ decision granted a noncompensable (0 percent) rating for left knee tendinopathy under DC 5260 effective November 14, 2023. The October 2024 decision also granted a noncompensable rating for a left lower extremity scar under DC 7802 and a 10 percent rating for a left lower extremity scar under DC 7804. As these issues were raised as part of the Veteran's claim for an increased rating for his left knee chondromalacia, the Board will also consider whether increased ratings are warranted for these service-connected disabilities.

Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Increased Ratings

A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. � 1155; 38 C.F.R. � 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. � 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. � 4.3.

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

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).

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. � 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DCs; the critical element in permitting the assignment of several evaluations under various DCs is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. � 5110(b)(2); 38 C.F.R. � 3.400(o)(2). "[A]n increase in a Veteran's service-connected disability must have occurred during the one-year period prior to the date of the Veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984.

1. From January 22, 2013 to June 30, 2022, entitlement to a 20 percent rating, and no higher, for left knee subluxation under DC 5257.

2. Since July 1, 2022, entitlement to a 30 percent rating, and no higher, for left knee subluxation under DC 5257.

The Veteran is seeking a rating under DC 5257 for left knee subluxation in excess of 10 percent from January 22, 2013 to April 23, 2013, and a rating in excess of 20 percent thereafter. He also seeks a rating in excess of 10 percent for left knee limitation of extension under DC 5261 effective April 24, 2013 and a compensable rating for left knee limitation of flexion effective November 11, 2024.

The 10 percent rating for limitation of extension and noncompensable rating for limitation of flexion were awarded during the course of the appeal. As the possibility for separate ratings was implicitly part of the appeal from his January 22, 2013 date of claim, they are considered part of the current appeal before the Board.

Rating Criteria

The Veteran's left knee subluxation is rated under 38 C.F.R. � 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, 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. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability.  38 C.F.R. � 4.71a, Diagnostic Code 5257.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means tending toward the mean or average amount or dimension. "Severe" means very painful or harmful or of a great degree.

Prior to February 7, 2021, objective medical evidence was not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence could not be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability.

For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

For patellar instability, 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 maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.

Note (1) 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 a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

Evidence

In a February 2013 counseling record, the Veteran reported left knee soreness and pain. Climbing stairs and mobility led to feelings of weakness.

In a February 2013 VA examination and March 2013 addendum, the Veteran was diagnosed with left knee chondromalacia patella with a history of subluxation. The Veteran reported daily pain and feels like his left knee is weak. He has "periodic episodes where it feels like his patellar is popping and that his left leg gives out." There are no triggers for these episodes. When his knee pops, it has severe pain that lasts 5 to 10 minutes and goes away with stretching. The Veteran walks often as he does not have a car. He asserted feeling knee weakness after walking about 4 miles. The Veteran denied flare ups of his left knee condition. His initial range of motion was normal with extension to 0 degrees and flexion to 140 degrees with no pain noted on motion. This was the same after repetitive use testing.

There was no functional loss or impairment of the knee or lower leg. There was no pain with palpation of the knee. Muscle strength was 5/5 with no atrophy noted. Anterior, posterior, and medial-lateral instability testing were all normal but the examiner noted slight left patellar subluxation/dislocation. There was no evidence of "shin splints," stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairments. No meniscal conditions were diagnosed. There were no additional pertinent findings recorded and the Veteran denied the use of an assistive device.

The Veteran's VA treatment records show he reported chronic knee pain throughout the period on appeal. In March 2013 and March 2014, the Veteran endorsed a history of left knee instability. He was issued a wraparound left knee brace in March 2013 by his VA provider.

In an April 2013 statement, the Veteran reported attending physical therapy for his left knee.

The Veteran underwent an additional VA examination in May 2013. The Veteran reported, when he was still working, his left knee would pop out of place and grind. He endorsed "frequent reoccurrences of his left knee giving out and him falling. This happens several times per year. He also endorsed weakness and soreness. His pain is 10/10 when his "kneecap pops out." He was prescribed a brace but it is too thick to wear under jeans. He further endorsed morning stiffness, "start-up pain" and episodes of swelling.

He reported flare ups of his left knee conditions. They were described are recurring instances of his left knee giving out and him falling several times per year, weakness, and soreness. His pain is 4 to 5 out of 10 but will reach a 6 to 7 out of 10 and is a 10/10 when his knee pops. This hinders his ability to run, climb stairs, or walk for more than a quarter mile. Initial left knee flexion was limited to 120 degrees with pain at 115 degrees but there was no limitation of extension. The same was noted after repetitive use testing. The examiner noted less movement than normal, weakened movement, pain on movement, swelling, deformity, atrophy of disuse, disturbance of locomotion, and interference with sitting, standing, and weight bearing. There was pain on palpation of the joint but his muscle strength was 5/5. Joint stability testing was normal but the examiner indicated moderate patellar subluxation/dislocation. There was no evidence of "shin splints," stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairments. No meniscal conditions were diagnosed. The examiner noted left patella apprehension and observed patella snapping laterally during flexion. He endorsed the regular use of braces. The Veteran reported having several prescribed knee braces that cause discomfort when worn.

Despite the May 2013 diagnosis of enchondroma and ganglion cyst, the examiner explained these are incidental findings. They are separate and unassociated with his service-connected left knee condition. See 7/1/2013 email correspondence. As such, no additional consideration of these conditions is warranted.

VA treatment records from June 2013 show the Veteran reported his left knee occasionally gives out and is intermittently swollen. However, he can still play softball. On examination that same day, the provider indicated there was full range of motion in the knees, no swelling, erythema, or pain on palpitation. The left kneecap shifts laterally with flexion of the thigh muscle. In October 2013, he had full range of motion in his left knee with no swelling indicated. At that time, he also reported issues walking for a long distance and driving a car with a standard transmission.

In a May 2014 VA examination, the Veteran asserted he feels his knee worsens every year. He endorsed current pinching pain that is a 7 or 8 out of 10 on average. He has episodes of subluxation about 3 times per year with swelling and soreness for 4 days to 3 weeks afterward. His knee also buckles frequently without subluxation. He climbs three flights of stairs daily to get to his apartment. He avoids most sports in fear his knee will sublux. He works out at the gym but avoids squatting and other movements that would put undo weight on his knees. He can golf but not run. He was walking miles per day but recently purchased a car. He endorsed flare ups of his left knee condition as described above. During a flare up, he can still do most of his necessary daily activities but will avoid as many other physical stressors as possible.

Initial range of motion testing showed left knee flexion limited to 130 degrees with no pain on motion. There was no limitation of extension. There was no change after repetitive use testing. The examiner indicated functional loss due to pain on movement in the left knee. There was pain on palpitation but his muscle strength was 5/5 in flexion and extension. No atrophy was indicated. Joint stability testing was normal but the examiner indicated moderate left knee subluxation/dislocation. There was no evidence of "shin splints," stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairments. No meniscal conditions were diagnosed. The examiner stated, "patellar tracks laterally with left knee flexion/extension. + patellar apprehension sign with lateral pressure on the patella." The Veteran reported the regular use of a knee brace when "he does something active." In closing, the examiner indicated there may be additional decreased function or range of motion secondary to his left knee pain and swelling during a flare up but was unable to provide an estimate without resorting to mere speculation. While the examiner did not further explain what would be needed to provide this information, the evidence of record around the time of this examination is sufficient for the Board to reasonably ascertain the functional impairment of his left knee at that time. Remand for an addendum retrospective opinion nearly 12 years later is not warranted at this time.

In a May 2014 VA primary care note, the Veteran reported his left knee sometimes buckles and pops out of place. His left knee was swollen compared to the right. He has tried physical therapy with no relief and finds his pain increased with weight bearing. VA treatment records show he continued to receive care for chronic right knee pain in April 2018. He recently exacerbated the issue playing with his niece and nephew. However, he still had full left knee range of motion on flexion and extension at that time. The provider indicated he has knee joint laxity and would benefit from brace an assessment second to this and his pain. He continued to report left knee pain and instability with patella slipping/popping in May 2018. His pain is worsened with ambulating, standing, and prolonged sitting. In June 2018, he was prescribed a left knee brace for patellar subluxation. In February 2019, the Veteran's provider noted left knee pain with no functional limitations. He continued to report pain in July 2020 and June 2021. In June 2021, he indicated his pain was typically a 2 out of 10 and did not interfere with his daily activities. The Veteran continued to report knee pain and receive treatment for his symptoms throughout 2022. A private MRI report in his VA treatment files from November 2022 show evidence of patellar subluxation, cartilage fissure, and mild patellar chondromalacia. Other diagnoses were provided but were not relevant to the knee or were not attributed to his service-connected knee disability.

The Veteran underwent left knee surgery in September 2023. His pre-operative and post-operative diagnoses remained the same. This included chronic left patellar instability and chondromalacia of patella, left knee. The pre-operative report noted a history of left knee instability with multiple dislocation episodes that were not improved with bracing or physical therapy. The Veteran was seen for a surgical follow up in October 2023, two weeks after the operation. The Veteran reported doing "fairly well" but was in a fair amount of discomfort. The medication provided appears to be helping "somewhat." He started physical therapy and was "up to about 70 degrees" in his range of motion. He reported bone pain, cramping pain, and localized joint stiffness at that time. The examiner continued to note the incision healed nicely and that he was able to do straight leg testing. He has some quadricep atrophy due to disuse but his nerve supply to the muscle was intact. The provider also noted some swelling. The record appears to show the Veteran was in a brace that the provider could change the mobility restrictions on to keep the Veteran's knee in certain positions. At that time, it was adjusted to allow for movement from 0 to 30 degrees.

A hearing was held in July 2022. The Veteran reported that during the period on appeal, he has had consistent left knee pain. The weather can worsen his symptoms and every few months, he has a dislocation. At times he will go six months with no dislocations, other times his knee will dislocate several times in one month. He cannot control when it happens but when it does occur, his knee is extremely painful and there is nothing he can do about it. When it does happen, for two months after he cannot do much but walk slowly, ice his knee, and attempt to regain his strength. His physical activities, including recreational and work related, are diminished due to his knee condition and his fear it will dislocate. Some days he wakes up with knee pain. He attends physical therapy which helps slightly but does not resolve his issue. He has been told he will eventually need surgery and even then, his knee will not regain its full strength.

He walks with a limp everywhere he goes and is always prepared for his knee to dislocate. This has created a fear of heights as the Veteran worries what will happen if he's hiking and his knee gives out while he is up high. The Veteran reported being in and out of physical therapy for the entire period on appeal and has had several braces prescribed to him. His knee is regularly weak. He does not bend his knee much and he is very limited as a result. Specifically, the Veteran reported his range of motion is significantly limited as he does not bend his knee or place much weight on it in fear it will "pop out at any point."

After an episode of dislocation, the Veteran testified he is "basically on a straight leg for a few weeks" until he can "get some strength back in it" and the healing process is complete. At the start of the period on appeal, his knee would dislocate at least once per year but now it is occurring much more frequently. The Veteran stated at least "once a quarter if note every other month at this point" but his prior reported history of dislocation appears to show this is happening about once per month, if not more. When he feels like his knee may become dislocated, for example when he feels a pull on the knee, he will walk with a straight leg and extra care as to not worsen the issue.

The Veteran was afforded an additional VA examination in June 2023. Here, the Veteran endorsed current symptoms to include chronic left knee pain and recurrent subluxation of the kneecap occurring more frequently over time. The Veteran reported he was no longer using his knee brace and was doing physical therapy with at home exercises. The Veteran denied flare ups of his left knee condition and indicated his functional loss included an inability to run or play sports. The Veteran described his instability as his knee popping out of place causing him to fall. His left knee active range of motion showed flexion limited to 110 degrees with no limitation of extension. The same was noted for passive range of motion. Pain was noted on flexion, with weight bearing, active motion, and passive motion but did not result in functional loss. There was also pain with palpation of the joint. There was no additional loss with range of motion after observed repetitive use testing. No measurements were provided during a flare-up as the Veteran denied having them or after repeated use overtime. No additional factors contributing to his disability were provided. No muscle atrophy or ankylosis was noted. The examiner found recurrent subluxation or persistent instability without surgery in the left knee but no ligament tears. There was no prescription for an ambulation device, such as a brace, noted. There were no tibia or fibular impairments, meniscal conditions, or surgical procedures noted. The Veteran did not report the use of any assistive device. The examiner explained that the Veteran denied flare ups of his left knee condition as he was always in pain.

The Board acknowledges that the June 2023 examiner's findings regarding flare ups are inconsistent with the Veteran's reports throughout the period on appeal. Moreover, the examiner did not provide range of motion estimates for repeated use over time or during a flare up. However, remand for a retrospective addendum opinion is not warranted as the Veteran's VA treatment records and a follow up November 2023 VA examination provide sufficient information for the Board to reasonably ascertain the severity of his left knee after repeated use overtime and during a flare up at the time of the June 2023 examination.

An additional VA examination was provided in November 2023. This examination was conducted less than 2 months after the Veteran's left knee surgery. The examiner provided a recurrent subluxation, tendinopathy, and tibial tubercle osteotomy diagnosis with 2023 diagnosis dates. The examiner also indicated that the Veteran had shin splints in 2007 or 2008 but did not indicate any diagnosis of such during the period on appeal. The Veteran reported current symptoms to include pain, soreness, tenderness, and limited range of motion. He is in physical therapy now but no additional treatment was noted. His left knee condition hindered his ability to choose an active career path and in his day-to-day life prevents him from climbing stairs. He reported falling down the steps as they are difficult to use and he can no longer play sports. He endorsed flare ups about 5 times per year that are moderate to severe. These flares will last for a few weeks and the Veteran does not know the cause. They are alleviated by stretching, rest, and ibuprofen use. He indicated his left knee gives out at times while walking.

Active left knee flexion was limited to 55 degrees with extension limited to 5 degrees. Pain was noted with flexion and extension. The same was noted during passive range of motion testing. Pain was also noted with weight bearing, active motion, and passive motion causing functional impairment such as an inability to perform manual labor. There was pain on palpation. His range of motion after repetitive use showed flexion limited to 50 degrees with no limitation of extension. The functional loss was due to pain. The same was provided for repeated use over time and during a flare up. Additional factors contributing to his disability included interference with standing, disturbance of locomotion, and swelling. No muscle atrophy or ankylosis was noted. The Veteran has recurring subluxation and was prescribed a walker. No patellar instability was noted. The examiner indicated a history of shin splints but no meniscal conditions. Surgical history now included a "tibial tubercle osteotomy" in 2023 but no residuals were noted. The Veteran indicated constant use of his walker. The examiner explained that the Veteran's shin splints are a separate diagnosis from his current service-connected left knee condition. This diagnosis appears to be provided based on the Veteran's reports of leg pain from 2007 to 2008 as there was no treatment for this condition and it did not impact his left knee range of motion.

Analysis under Diagnostic Code 5257

The Board finds entitlement to a 20 percent rating for moderate left knee subluxation is warranted effective January 22, 2013, his current date of claim. The Veteran reported to the February 2013 VA examiner that he had periodic episodes of his knee popping and giving out. This also resulted in a significant increase of pain. That examiner only indicated slight instability. However, only a few months later in May 2013, the Veteran reported his knee gives out causing him to fall several times per year. This is in addition to the weakness, soreness, and pain he experiences regularly and in excess when his knee pops. While the May 2013 VA examination appears to convey his instability has worsened, the Board finds it unlikely that his condition would have deteriorated that much in only 3 months. Moreover, the Veteran's statements to the May 2013 VA examiner indicate at least a year long history of symptoms.

His symptoms occur on average a few times per year but cause him to fall and increase his already consistent symptoms. His pain lasts for about 10 minutes with some stretching. Resolving reasonable doubt in favor of the Veteran, his left knee has exhibited moderate subluxation manifest by popping, instability, falls, and the use of a knee brace throughout the period on appeal. As such, entitlement to a 20 percent rating for moderate left knee subluxation is warranted effective January 22, 2013.

In doing so, the Board has considered whether a rating in excess of 20 percent is warranted at any time during the period on appeal. As discussed above, the Veteran has reported constant issues with left knee subluxation throughout the period on appeal. In February 2013 and May 2013, he reported a few instances of popping throughout the year that caused increased symptoms for about 10 minutes each time this happened. He also reported falls and the use of a knee brace. He reported the ability to walk for miles at a time but felt weakness in the knee afterward. He continued to assert about 3 episodes of subluxation each year with symptoms that lasted for 4 days up to 3 weeks at a time in May 2014. The Veteran's VA treatment records continue to show reports of subluxation in the left knee but are more general in nature. Meaning they note the issue but do not provide significant detail as to what happens, how often the issue occurs, or the like.

However, during the July 2022 hearing, the Veteran's reports of symptoms appear to have significantly increased. He reports consistent issues with subluxation ranging from episodes every other month to several times each month. He describes his knee popping out of place causing significant pain. He does not know what causes this to happen but will have about a 2-month recovery period when it does. The Veteran also reported taking great care not to partake in activities that may cause his knee to pop out of place. This indicates that the Veteran would have more subluxation episodes if the Veteran were not to take such care. He also indicated he was prescribed knee braces in the past and was actively participating in physical therapy again. While these helped his left knee symptoms, they did not resolve the issue. He made similar reports to the June 2023 VA examiner. Thereafter, in September 2023, the Veteran underwent a left knee operation for his chronic recurring subluxation but continued to have issues. Even with the surgery to correct the issue, the Veteran continued to have consistent subluxation of the left knee and was prescribed a walker according to the November 2023 VA examination.

Based on the above, the Veteran's left knee subluxation significantly increased during the period on appeal. He originally was having episodes of subluxation a few times a year with only a few minutes of residuals thereafter. However, in the July 1, 2022 hearing, the Veteran indicated for the first time that his symptoms were actually occurring on average once a month to several times per month. Instead of only about 10 minutes of pain thereafter, the Veteran was now reporting a two-month healing period after subluxation. Even without these episodes, the Veteran is so consistently worried his knee will give out that he changes the way he walks. This has resulted in him falling down the stairs due. The record reflects his worry about subluxation and countering any signs it is about has caused him to become unstable on his feet. His episodes happen at least once per month but result in a significant healing period where he continued to experience feelings of subluxation. Since the July 1, 2022 hearing, the Veteran has reported very painful, harmful, and significant episodes of subluxation. As such, entitlement to a 30 percent rating for left knee subluxation under the pre-amended DC 5257 criteria is warranted effective July 1, 2022.

Even considering the amended criteria, a rating in excess of 20 percent prior to July 1, 2022 and in excess of 30 percent thereafter is not warranted. At no time was the Veteran diagnosed with patellar instability. Therefore, that portion of the amended criteria is inapplicable to this evidence. Rather, his left knee condition has consistently been defined by his subluxation. However, the evidence of record fails to show the Veteran had a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability for which a provider prescribed an ambulation device. The Veteran was prescribed knee braces in 2014 but the record shows he has not continued to use them and that he has not received a renewed prescription for one since the February 2021 regulation amendments became effective. The Veteran was prescribed a walker after surgery in October 2023 during the period he is now receiving a 30 percent rating under the pre-amended DC 5257 criteria. Additionally, there is no basis to award a rating in excess of 30 percent as this is the highest possible rating under the amended DC 5257 criteria. As such, even considering the amended DC 5257 criteria, entitlement to a rating in excess of 20 percent prior to July 1, 2022 and in excess of 30 percent thereafter is not warranted.

The effective date assigned is based on the Veteran's hearing testimony taken on July 1, 2022. This is the earliest date of record of which it is factually ascertainable that an increase in his subluxation symptoms occurred. 38 U.S.C. � 5110(b)(2). The Board acknowledges the Veteran reported his left knee symptoms have been present since 2011. However, the record reflects his symptoms have worsened over time with the earliest ascertainable date of change being the July 1, 2022 hearing. Prior to this date, as explained above, the Veteran's left knee subluxation more closely approximated that of moderate, or the average amount, of subluxation. As such, entitlement to a 30 percent rating prior to July 1, 2022 is not warranted.

Diagnostic Code 5257 does not allow for a rating in excess of 30 percent in the pre-amended or amended criteria for knee subluxation. The remainder of the Veteran's symptoms will be addressed below but there are no additional symptoms relevant to left knee subluxation not contemplated by his 20 percent and subsequent 30 percent rating under DC 5257.

3. From January 22, 2013 to November 13, 2023, entitlement to a 10 percent rating, and no higher, is granted for painful motion of the left knee under DC 5260.

4. For the entire appeal period, entitlement to a rating in excess of 10 percent for left knee limitation of extension or flexion is denied.

Incorporating the evidence laid out in the subluxation analysis above, the Board will now address the ratings under Diagnostic Codes 5260 and 5261. The Board would like to offer an explanation regarding why the current ratings were assigned for clarity.

Under 38 C.F.R. � 4.59, when a musculoskeletal disability results in painful motion, but does not meet the rating criteria for a compensable rating (higher than zero), it can receive the minimum compensable rating under the Diagnostic Code. Under DCs 5260 and 5261, the minimum compensable rating is 10 percent. Outside of � 4.59, a 10 percent rating is only available if there is limitation of flexion to 45 degrees, or limitation of extension to 10 degrees, respectively.

From April 24, 2013 through November 13, 2023, the Veteran received a 10 percent disability rating under DC 5260 for painful motion of the left knee. Originally, the Veteran's 10 percent rating was awarded under DC 5260 for noncompensable limitation of flexion with painful motion. This was assigned under DC 5260 because while his flexion was somewhat limited, it was not limited enough to warrant a compensable rating under DC 5260. That is, flexion was not limited to at least 60 degrees, which is the criteria for a 0 percent rating, or 45 degrees for a 10 percent rating. At the time the 10 percent rating for limitation of flexion was awarded as the minimum compensable rating for painful motion, the evidence of record failed to show any limitation of extension.

However, at the November 2023 VA examination, the Veteran's extension was limited to 5 degrees. This exactly meets the criteria for a noncompensable rating under DC 5261, but does not meet the criteria for a 10 percent rating. At the same examination, the Veteran's flexion still was not limited to at least 60 degrees, so the criteria for a noncompensable rating under DC 5260 were not met.

As a result, effective November 14, 2023, the10 percent minimum compensable rating for painful motion was moved from DC 5260 to DC 5261 as "tendinopathy of the left patellar tendon status post tibial tubercle osteotomy with limitation of extension." This changed nothing about the amount of the award being paid; it merely changed to the DC where the Veteran met the criteria for any rating, even if it was noncompensable.

Effective November 14, 2023, the AOJ changed the 10 percent rating under DC 5260 to 0 percent for "tendinopathy of the left patellar tendon status post tibial tubercle osteotomy with limitation of flexion." This reflects that the Veteran's limitation of flexion still did not meet the criteria for a compensable rating. As the Veteran's painful motion and limitation of function was properly considered under DC 5261, he could not receive a separate additional 10 percent rating under DC 5260 for painful motion. This would have resulted in impermissible pyramiding under 38 C.F.R. � 4.14. Specifically, his left knee painful motion would be compensated twice under two separate ratings.

The Veteran has been consistently reporting left knee pain throughout the period on appeal. While the February 2013 VA examiner did not indicate there was pain on motion, the Veteran reported pain, nonetheless. He also continued to report painful left knee motion to his VA providers thereafter. Prior to the April 24, 2013 effective date for his 10 percent rating for painful motion under DC 5260, the Veteran's left knee pain was not properly considered by his now-20 percent rating for subluxation. Prior to April 24, 2013, the Veteran did not have any limitation of extension or flexion but still had reports of pain in the left knee. As such, the minimum compensable 10 percent rating for left knee painful motion is warranted effective January 22, 2013.

As of April 24, 2013, the Veteran was granted a 10 percent rating under DC 5260. The Board finds that assignment under either DC 5260 or DC 5261 for painful left knee motion for the period prior to April 24, 2013 results in the same rating but will use DC 5260 as that was the diagnostic code in use at that time.

A rating in excess of 10 percent is not warranted at any time during the period on appeal under DC 5260 or DC 5261. The Veteran's flexion was limited to at worst 50 degrees, which only meets the criteria for a noncompensable rating under DC 5260. Likewise, the Veteran's extension was limited to at worst 5 degrees, which also corresponds to a noncompensable rating. His left knee painful motion is properly compensated by his 10 percent rating throughout the appeal period.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for left knee limitation of flexion or extension. The Veteran reported a significant amount of guarding in order to avoid dislocating his knee but at no time indicated he could not do so if needed. He also reported having a long recovery period after his subluxation episodes but at all times appeared able to bend his knee, even if he was anxious to cause a dislocation of the knee. The Board also acknowledges the Veteran reported some left knee swelling and stiffness throughout the period on appeal. He has not indicated how this swelling and stiffness impacts his functional ability. The May 2013 VA examiner was the only one who indicated these issues may impact his left knee function. Even considering this, the May 2013 VA examiner found flexion was at worst 130 degrees with no limitation of extension noted. The record does not provide a basis to dispute this examiner's findings.

As such, these symptoms are properly contemplated by his minimum compensable 10 percent rating for limitation of motion with pain and functional loss. There is no lay or medical evidence indicating that his left knee swelling, stiffness, and pain result in limitation of flexion to 30 degrees or worse or extension limited to 15 degrees or worse. Based on the above, a rating in excess of 10 percent for painful left knee motion under either DC 5250 or DC 5261 is not warranted at any time during the period on appeal.

Other Diagnostic Codes

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, 6 Vet. App. at 261-62; Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. � 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

A rating under DC 5256 for ankylosis of the knee is not warranted. The February 2013, May 2013, May 2014, June 2023, and November 2023 VA examiners all specifically found no diagnosis of ankylosis was present. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran endorsed flare ups of his left knee subluxation that resulted in significant pain, guarding of the knee, weakness, and long periods of recovery. He reported walking with a straight leg in an attempt to avoid any left knee dislocations and some stiffness. However, at no time did the Veteran assert his left knee locks in any position. He has at all times been able to move his knee even if he did not wish to for fear it may cause a subluxation. The evidence of record fails to show the functional equivalent of ankylosis is present in this case or that the Veteran's symptoms more closely represent a disability picture of locking in the left knee between 10 to 20 degrees. A rating under DC 5256 is not warranted at any time during the period on appeal.

Ratings under DC 5258 and DC 5259 are not warranted as the evidence of record fails to show the Veteran has a meniscal condition. Specifically, his VA treatment records are silent for meniscal conditions and all of the VA examiners of record indicated no such diagnosis.

A rating under the pre-amended and amended criteria of DC 5262 is not warranted as the Veteran was not reported to have a tibia or fibula impairment associated with the left knee. The Board acknowledges notations of a tibial tubercle osteotomy but this is a surgical procedure to treat patellar instability; it is not a diagnosis of a tibial impairment. The Board also acknowledges that the November 2023 VA examiner indicated the Veteran had shin splints in 2007 to 2008. However, the evidence of record, including the November 2023 VA examination, failed to show that the Veteran had a current shin splints diagnosis or disability at any point during the period on appeal. Therefore, a rating under either version of DC 5262 is not warranted.

As the record fails to show a genu recurvatum diagnosis, a rating under DC 5263 is not warranted.

Finally, the Board acknowledges that in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court of Appeals for Veterans Claims found that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." In considering all of the ratings above, the Veteran reported using braces, walkers, and physical therapy to help his symptoms without resolution. These are not considered forms of medication. The Veteran's provider noted pain medication was used after surgery in October 2023 and the Veteran made one report of taking over-the-counter ibuprofen in November 2023. However, he reported pain despite his medication use designed to treat this symptom. The Board acknowledges the Veteran indicated the use of medication in November 2023 and that he used several other non-medication based alleviating factors to reduce his pain. However, the Veteran did not assert medication alone impacts his pain levels and has instead consistently reported significant pain throughout the period on appeal. The persuasive weight of the record does not show the Veteran's medication use is helpful or reducing his symptoms. There are no beneficial medication effects to discount. See Ingram v. Collins, 38 Vet. App. 130 (2025).

Conclusion

The Board finds the persuasive weight of the evidence is in favor of granting entitlement to a 20 percent rating for moderate left knee subluxation effective January 22, 2013 under DC 5257. Effective July 1, 2022, entitlement to a 30 percent rating for severe left knee subluxation under DC 5257 is granted. Finally, entitlement to a 10 percent minimum compensable rating for painful left knee motion is warranted from January 22, 2013 to April 22, 2013. These claims are granted.

5. Entitlement to an initial compensable rating for a left knee scar under DC 7802.

6. Entitlement to an initial compensable rating for a painful left knee scar under DC 7804.

The Veteran seeks an initial compensable rating for a left knee scar under DC 7802 and a rating in excess of 10 percent under DC 7804. The Veteran's 0 percent rating under DC 7802 was granted effective November 14, 2023, while the Veteran's 10 percent rating under DC 7804 was granted effective September 21, 2023. However, as the possibility for separate ratings, to include those for scars, was implicitly part of the appeal from January 22, 2013 (the beginning of the period on appeal), the Board will consider whether an increased rating for his left knee scar is warranted at any time during the period on appeal.

The Veteran's left knee scar is currently rated under Diagnostic Codes 7802 and 7804.

The Board acknowledges that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

During a November 2023 VA examination, the Veteran reported mild tenderness of his scar. He was treating his scar with vitamin E oil and he denied any functional impact resulting from his scar. The examiner noted 2 mildly tender scars but noted they were not unstable with a frequent loss of covering of the skin over the scar. There were no scars due to burns. His first scar was measured to be 19cm long by .2cm wide with the second scar measuring .5cm long by .4cm wide. Scar one was tender to palpation but neither scar was unstable nor involved underlying soft tissue damage. In contrast to this finding, the examiner then found a left lower extremity scar measuring 4 sq. cm. involved underlying soft tissue damage. The Veteran's scars did not cause a limitation of motion and no additional findings were made.

The Veteran's October 2023 surgical follow up indicated his incision was healing well but he was still in a fair amount of discomfort.

DC 7801 and 7802

Prior to August 13, 2018, Diagnostic Code 7801, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear.  Under these criteria, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. A scar with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrants a 30 percent rating. A scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 40 percent rating. 38 C.F.R. � 4.118.  Prior to August 13, 2018, Note 1 to Diagnostic Code 7801 instructed that a deep scar is one associated with underlying soft tissue damage  Id.

Since August 13, 2018, Diagnostic Code 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. � 4.118. DC 7801 was otherwise unchanged by the August 13, 2018, amendments.

Prior to August 13, 2018, Diagnostic Code 7802 was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. � 4.118. Note 1 to DC 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id.

Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. � 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments.

Both of these DCs are based on the area covered by the service-connected scars. The only difference is that DC 7801 is for scars that are deep and nonlinear, or associated with underlying soft tissue damage, and DC 7802 is for scars that are superficial and nonlinear., or not associated with underlying soft tissue damage.

In this case, a compensable rating is not available under DC 7801 or 7802, because the scars do not cover 39 sq. cm. (6 sq. in.) or greater, much less 929 sq. cm. (144 sq. in.). The first scar was measured to be at most 19cm long by 0.2cm wide (3.8 sq. cm.) and the second scar 0.5cm long by 0.4cm wide (0.2 sq. cm.). When added together, this is a total area of 4 sq. cm. . No other measurements for scars with underlying soft tissue damage were provided.

The November 2023 VA examiner's seemingly contradictory findings regarding whether or not the Veteran's scars involve underlying soft tissue damage do not change this outcome. Regardless of whether there is actually underlying soft tissue damage or not, the scars do not cover at least 6 square inches (39 sq. cm.). As such, entitlement to a compensable rating under DC 7801 is not warranted.

Therefore, the Board finds that the evidence of record persuasively weighs against the assignment of a compensable evaluation under DC 7801 or 7802.

DC 7804

Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. � 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id.

Here, the Veteran is service connected for two left knee scars that are painful. Neither the Veteran nor the record indicate that either scar was unstable. As he is not service-connected for any other painful scars, the criteria for a rating higher than 10 percent are not met.

Conclusion

The Board has considered the other DCs pertaining to scars. However, the Veteran's service-connected scars are not of the head, face, or neck; therefore, pre- and post-amendment DC 7800 is inapplicable. The evidence of record shows there are no other disabling effect(s) not considered in a rating provided under DCs 7800-04. The Veteran only reported mild tenderness of his left knee scars with no additional impacts on his functional ability. Therefore, no rating is available under pre- or post-amendment DC 7805.

Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether entitlement to a compensable rating under DC 7802, or a rating in excess of 10 percent under DC 7804, is warranted for left knee scars. The benefit of the doubt doctrine does not apply. 38?U.S.C. �?5107(b), Lynch, 21 F.4th 776 (holding the benefit-of-the-doubt doctrine is not for application when the evidence is persuasively for or against the claim). The claim is denied.

Laura E. Collins

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Conti, S.

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.


judge_norm: B T KNOPE

disposition: dismissed

text:
Citation Nr: 26005000
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 24-00 117
DATE: April 28, 2026

ORDER

The issue of entitlement to service connection for a left foot condition is dismissed as untimely.

FINDING OF FACT

A rating decision was issued July 28, 2016; the Veteran submitted a notice of disagreement (NOD) in response on December 14, 2018.

CONCLUSION OF LAW

The Veteran filed an untimely NOD to the July 2016 rating decision.  38 U.S.C. � 7105(c); 38 C.F.R. �� 3.160(d), 19.52, 19.53.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Army, on active duty from July 1983 to May 1986, his awards include the Army Achievement Medal, among others.

The Veteran seeks to appeal a July 2016 rating decision that denied entitlement to service connection for a left foot condition.

The Board initially dismissed this appeal in an April 2025 decision. The Veteran appealed this dismissal to the Court of Appeals for Veterans Claims (Court), which in December 2025, issued a Joint Motion for Remand (JMR) vacating the Board's prior decision. The parties in the JMR agreed that the Board erred by failing to discuss if it considered the relevant portion of VA's manual, the M21-1.

Timeliness of Notice of Disagreement (NOD)

A claimant, or their representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination. Otherwise, that determination will become final.  The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. � 19.52. A timely filed NOD, however, is a jurisdictional bar to appellate consideration, and the Board will not waive it in this case. Percy v. Shinseki, 23 Vet. App. 37, 41 (2009).

A Legacy claim that is adjudicated by the Department of Veterans Affairs as either allowed or disallowed is considered finally adjudicated on the expiration of the period in which to file a Notice of Disagreement. 38 C.F.R. � 3.160(d)(1).

The presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations.  As applied here, if notice is sent to a veteran's last known address of record, it will be presumed that VA properly discharged its official duties. Marsh v. Nicholson, 19 Vet. App. 381 (2005); Boyd v. McDonald, 27 Vet. App. 63 (2014); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO).

Significantly, a veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA's regular mailing practices were not followed in his case; in this regard, the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. Crain v. Principi, 17 Vet. App. 182, 188 (2003). An "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet. App. 98 (1998).

If a veteran succeeds in rebutting the presumption of regularity, then the burden shifts to VA to establish that regular administrative practices were, in fact, observed. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001); Baxter v. Principi, 17 Vet. App. 407, 410 (2004).

Timeliness of the December 2018 NOD

The Veteran, through his attorney, argues that the December 2018 NOD should be considered timely in response to the July 2016 rating decision, because notice of the July 2016 decision was deficient in that his representative never received a copy.  Thus, he argues, the claim remained pending, as VA has failed to notify the claimant of the denial of the claim. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002).

In argument submitted February 2026, the Veteran's representative presents several points. First, that rebutting the presumption of regularity to VA correspondence is "an impossible burden" inconsistent with several Court cases.  Second, the July 2016 rating decision merely notes the representative's office and not their address, contrary to the rules in the M21-1, constitutes evidence of irregularity.  Third, an affidavit from the managing partner of their law firm explains the standard procedures for all mail and confirms the July 2016 rating decision was not received.  Lastly, that VA's mailing practices are systemically flawed in general. Together, the Veteran's representative contends these points rebut the presumption of regularity, equitable tolling should apply and the NOD should be considered timely.

As an initial matter, as was noted in the JMR, the VA Adjudicative Procedures Manuel, M21-1, states that "Accredited private attorneys or claims agents must receive a paper copy of any correspondence regarding the claim they represent." See M21-1, Part II.1.A.1.k (May 17, 2024).  The M21-1 also specifically instructs that when sending correspondence to a non-VSO representative, the representative's mailing address should be included in the carbon copy line of the correspondence.  M21-1 Part I.i.2.B.1.e (March 2, 2026).  However, the M21-1 is not binding on the Board. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals").  Nevertheless, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257, 259 (2018).

Here, the Board acknowledges that the attorney's address was not included in the July 2014 rating decision notification letter.  However, the Board does not find that this purely administrative defect leads to the conclusion that the attorney must have never received it.  Specifically, a number of correspondences, to include a July 2014 notification letter, January 10, 2015, Appeals Election Letter, a January 12, 2015, Standard 5103 Notice all list only the attorney's name.  Nevertheless, the evidence does not show that they were not received.  To the contrary, the representative's January 16, 2015, letter notes argument in response to the "Section 5103 Notice."

Given that these letters were similar and apparently received by the Veteran's attorney, it indicates to the Board that VA's regular practice prior to the July 2016 rating decision was followed with no complications.  Indeed, there is no indication in the record that other letters with this notation were not received by the representative or were returned to the RO. As such, the presumption of regularity has not been rebutted based on this argument.  See Clark v. Nicholson, 21 Vet. App. at 133 (2007).

Moreover, the Board does not believe that the presumption of regularity is an "impossible burden" for the Veteran to overcome. Indeed, there are many scenarios where it can be easily determined that a notice letter did not reach the recipient, most common being that the mail is simply returned to VA.  Here, while the Veteran basically argues "if we received the letter, we would have known about it," this is insufficient to overcome the presumption of regularity, as an "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet. App. 98 (1998).

Next, while the Veteran's representative seeks to show that VA's mailing operations were systemically flawed, such general assertions do not overcome the presumption of regularity in this instance.  For example, while there may be instances of correspondence sent to incorrect representatives, the GAO advocating for improvement of VA mail operations, or a March 2022 letter addressing an acute period of mail disruption in 2021, none of these examples have been shown to impact this specific veteran.  Moreover, such general contentions do not constitute However, none of these examples represent clear evidence that VA did not send a copy of the July 2016 rating decision to the last known address of the Veteran and his representative.

In summation, while the Board acknowledges that the attorney's address was not listed in the July 2016 rating decision notice letter, as is required by the M21-1, this does not automatically prejudice the Veteran, nor does it necessarily lead to the conclusion that the Veteran's attorney never received it, especially in view of the fact that other correspondence reached the representative with no issues.  Moreover, the arguments the Veteran's attorney presents do not overcome the clear evidence burden necessary to rebut the presumption of regularity in this manner.

Thus, the Board finds that an appeal of the July 2016 rating decision is not properly before the Board as the procedural requirements have not been met. Accordingly, the appeal is dismissed.

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	McDonald, Thomas K.


series: ama

judge_norm: K PARAKKAL

text:
Citation Nr: A26001000
Decision Date: 01/06/26	Archive Date: 01/06/26

DOCKET NO. 250507-546938
DATE: January 6, 2026

ORDER

Service connection for cause of death is granted.

FINDING OF FACT

There is an approximate balance of positive and negative evidence as to whether the Veteran's military occupational exposures contributed substantially to his development of COPD and respiratory decline, which caused his death.

CONCLUSION OF LAW

The criteria for service connection for cause of death have been met.  38 U.S.C. �� 1110, 1310, 5103, 5107; 38 C.F.R. �� 3.303, 3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from January 1961 to December 1963.  The Veteran died in December 2020.  The appellant is his surviving spouse.

The matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2025 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Hearing option.  The appellant testified before the Board on October 20, 2025.  A copy of the hearing transcript is associated with the claims file.

Under the Hearing option, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative at the hearing or within 90 days following the hearing.  38 C.F.R. � 20.302(a).  The appellant, waived her right to submit evidence for a period of 90 days following the hearing in an October 2025 Statement in Support of Claim.  38 C.F.R. � 20.300(b).

This case has been advanced on the docket pursuant to 38 C.F.R. � 20.902(c).

Service connection for cause of death

Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. � 1310; 38 C.F.R. � 3.5.  In order for service connection for the cause of a Veteran's death to be granted, it must be shown that a service-connected disability was either the principal cause of death or was a contributory cause of death. 38 C.F.R. � 3.312(a).  A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability.  38 U.S.C. � 1310; 38 C.F.R. � 3.312.

The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. � 3.312(b).  A contributory cause of death is inherently one not related to the principal cause.  In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. � 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).

The Veteran died in December 2020.  His death certificate lists chronic obstructive pulmonary disease as the cause of death and Waldenstrom's Macroglobulinemia as a significant condition contributing to death.  The Veteran was an Army welder and blacksmith.  As a welder, he was subject to numerous toxic compounds emitted during the welding process.

At the time of his death, the Veteran was service connected for bilateral hearing loss and tinnitus.  Although the immediate cause of death was not service connected at the time of the Veteran's death, entitlement to service connection may be considered for the purpose of establishing service connection for the cause of death.  See 38 U.S.C. � 1310(a).  In this regard, the appellant argues that exposure to toxins as a welder during service caused the Veteran to develop COPD.

A VA medical opinion was obtained in January 2025.  The examiner found that there are no significant or notable scientific studies demonstrating a causal relationship between the veteran's military service related toxic exposures, including exposure to metal fumes and gases (Aluminum, Antimony, Arsenic, Beryllium, Cadmium, Chromium, Cobalt, Copper, Iron, Lead, Manganese, Molybdenum, Nickel, Silver, Tin, Titanium, Vanadium, Zinc; Argon, Helium, Nitrogen, Carbon Dioxide) and Waldenstrom's Macroglobulinemia.  Rather, the conditions are unrelated.  The examiner further noted that a history of smoking is a significant risk factor for Waldenstrom's Macroglobulinemia. McMaster ML. "The epidemiology of Waldenstr�m macroglobulinemia." Semin Hematol. 2023 Mar, 60(2): 65-72.

The veteran had a 70 pack per year history of smoking.  The examiner found that up to 90% of COPD cases are related to a history of smoking and that smoking is also a risk factor for Waldenstrom's Macroglobulinemia.  As a consequence, the examiner concluded that the most likely cause of the veteran's death was his history of smoking, which directly caused his COPD.  Effective June 9, 1998, the awarding of service connection for a disability or death that results from the Veteran's use of tobacco products in service is prohibited.  38 CFR 3.300.  The examiner opined that it is less likely than not (likelihood less than approximately balanced or nearly equal) that the Veteran's service connected exposures, including exposures to metal fumes and gases (metal fumes and gases (Aluminum, Antimony, Arsenic, Beryllium, Cadmium, Chromium, Cobalt, Copper, Iron, Lead, Manganese, Molybdenum, Nickel, Silver, Tin, Titanium, Vanadium, Zinc), exposure to gases (Argon, Helium, Nitrogen, Carbon Dioxide) had debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death or that the exposures contributed substantially or materially to death, or that the exposures aided or lent assistance to the production of death.  Rather, the examiner found that it is more likely than not that the veteran's smoking history proximately caused the conditions that led to his death.

In support of her supplemental claim, the appellant submitted an article entitled Welding Fumes, A Risk Factor for Lung Diseases in September 2024.  The appellant also submitted a private medical opinion from the Veteran's treating clinician in October 2025.  The examiner noted that occupational health research, including findings acknowledged by government health agencies, has long associated welding and related exposures with an increased risk of chronic lung diseases, respiratory impairment, and certain hematologic disorders.  She opined that, within a reasonable degree of medical certainty, the Veteran's military occupational exposures at least as likely as not contributed substantially to his development of COPD and respiratory decline, which ultimately required long-term supplemental oxygen and led to his death.

(Continued on the next page)

?

The Board finds the January 2025 and October 2025 medical opinions have relatively equal probative weight.  As such, there is an approximate balance of competing evidence, and the benefit-of-the-doubt rule is for application.  Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021).  Resolving reasonable doubt in favor of the Veteran, service connection for COPD and cause of death is granted.  38 U.S.C. � 5107(b); 38 C.F.R. �� 3.102, 3.312.

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B Jackson, M.

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.