Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected right knee disability is remanded.

Citation Nr: 26001439 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 18-50 101 DATE: January 30, 2026 REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1984 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for right knee patellar chondromalacia evaluated at 10 percent and limitation of extension of the right knee evaluated as noncompensable. In February 2024, the Board issued a decision denying a rating in excess of 10 percent for painful limitation of motion of the right knee. The Veteran filed a timely appeal before the United States Court of Appeals for Veterans Claims (Court). In March 2025, VA and the Veteran (the parties) agreed to and filed a Joint Motion for Remand (JMR), which was subsequently granted by the Court later that month. The matter has now returned to the Board for additional consideration consistent with the terms of the JMR. The parties to the JMR noted that the Veteran requested a Board hearing in correspondence accompanying his October 2018 VA Form 9, Substantive Appeal, yet the Veteran was never afforded a hearing before the Board proceeded with its February 2024 decision on the merits. The Veteran attended a Board hearing in November 2025 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been associated with the record. The Veteran's spouse also offered testimony at the Board hearing. This Board hearing has rectified the hearing issue identified in the JMR. At the hearing, the Veteran detailed increased swelling and severe pain in his right knee, calf, and Achilles tendon which made it difficult to walk and stand as the day progressed. He stated that the pain and stiffness escalated throughout the day, necessitating the use of a cane for mobility by the evening. He explained how his right knee condition forced him to overcompensate with his left leg, causing additional problems in his left leg, hips, right Achilles, and lower back. He also mentioned experiencing muscle cramps at night, difficulty sleeping, and needing to place pillows for support. He reported the use of muscle relaxers but stated they only worked to a limited extent in controlling his pain and symptoms. The Veteran discussed the significant impact of his right knee condition on his mental health, leading to depression and anxiety due to chronic pain, sleep deprivation, and fear of losing his job as a court deputy. He testified that his job performance had been affected, but his employer accommodated his disability by assigning him to court duties that primarily involved sitting. He reported overall bodily discomfort, trouble caring for his grandkids, and concern for his physical and mental well-being. The Veteran's spouse confirmed her husband's account, emphasizing the daily challenges and discomfort he faced, the assistance he required from her, and the impact on their quality of life. The Board has considered whether claims seeking entitlement to service connection for left leg, right Achilles, bilateral hip, low back, sleep, and/or psychiatric disabilities as secondary to the Veteran's service-connected right knee disability have been reasonably raised during the course of the appeal. In Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021), the Court held that the Board is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for an increased rating for a primary service-connected disability. This holding was reiterated in Wilson v. McDonough, 35 Vet. App. 103 (2022), where the Court emphasized that the standard for determining whether a secondary service connection claim was raised in conjunction with a pending increased rating claim was whether the nonservice-connected disability "logically relates" to the disability subject to the increased rating claim. Id. at 107. At the November 2025 Board hearing, the Veteran asserted that he experienced left leg, right Achilles, low back, bilateral hip, and sleep disabilities caused by his service-connected right knee disability. The evidence of record fails to demonstrate that the Veteran has been diagnosed with left leg, right Achilles, low back, bilateral hip, or sleep disabilities, or related symptoms establishing a functional impairment in earning capacity. No medical provider has indicated a possible association between the Veteran's right knee disability and any impairments in the left leg, right Achilles, low back, bilateral hips, or the Veteran's sleep system. The Veteran does not have the medical training, education, or expertise necessary to opine on the diagnosis or etiology of complex medical conditions, and thus, his lay statements, alone, do not serve as competent evidence of a possible association. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board concludes that claims seeking entitlement to service connection concerning the left leg, right Achilles tendon, lower back, bilateral hips, and/or sleep difficulties are not "logically related" to the underlying claim regarding the Veteran's service-connected right knee disability so as to place the matters within the Board's adjudicative domain. See Wilson, supra. As to the Veteran's assertion that his right knee disability has resulted in a psychiatric condition, the Board observes that a claim seeking entitlement to service connection for an acquired psychiatric disability, to include depressive disorder, anxiety disorder and/or posttraumatic stress disorder (PTSD) was denied in a final February 2023 Board decision due to the lack of a current disability. The Court has not issued a precedential decision addressing how the Bailey/Wilson calculus works when there is a prior final denial of a claim asserted as "logically related" to a pending increased rating claim. Under the legacy appeal system, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2018). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). While the Veteran suggested at the November 2025 Board hearing that he suffers from a mental health disability caused by his right knee disability, the record does not show a psychiatric disability competently diagnosed under the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition (DSM-5), criteria. The Veteran has submitted evidence indicating that he underwent a mental health assessment in November 2025, but the results of the assessment were not provided. Likewise, the Veteran is not competent to diagnose himself with a DSM-5 diagnosis or to medically link such a disability to his right knee disability. See Jandreau, supra. While the Veteran's hearing testimony is new, it is not material because it does not competently relate to an unestablished fact necessary to substantiate the claim. Thus, a claim for an acquired psychiatric disability cannot be reopened under the application of controlling law. As this threshold issue has not been met, the Board need not reach the question of whether the Veteran suffers from a mental health disability "logically related" to his service-connected right knee disability. A secondary service connection claim for an acquired psychiatric disability secondary to the Veteran's right knee disability under Bailey and Wilson is not properly before the Board. At the November 2025 Board hearing, the undersigned told the Veteran that if he wishes to file any secondary service connection claims he should discuss this idea with his representative and file the appropriate applications with the RO to initiate such claims in accordance with VA regulations. In the March 2025 JMR, the parties agreed that the September 2023 VA examination was inadequate because the examiner concluded that the Veteran did not report or have a history of frequent effusion of the knee but did not address the Veteran's previous lay reports of chronic right knee swelling. The parties agreed that the VA examiner was required to consider and address the Veteran's lay reports and directed the Board to remand for a new VA examination addressing the Veteran's lay reports. See Miller v. Wilkie, 32 Vet. App. 249, 259-60 (2020). In the April 2025 appellate brief, the Veteran's Court counsel questioned whether the Veteran's swelling/infusion and his lay reports of a clicking sensation at the September 2023 VA examination suggested the presence of a meniscal disability in the right knee. The VA examiner shall be requested to address this contention upon remand. The parties to the JMR also agreed that the September 2023 VA examination did not comply with the Board's February 2023 Board remand directives. In February 2023 decision, the Board remanded the claim and directed a VA examiner to review the December 2015 VA examination and offer a retrospective opinion addressing the missing information required by the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), to include "range of motion results for the Veteran's active motion, passive motion, as well as ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing." In a September 2023 addendum opinion, the examiner stated that she could not provide an opinion on the passive range of motion in 2015 because it was not assessed in the December 2015 VA examination. For the remaining requested measurements, the examiner simply used the measurements given in the December 2015 VA examination. The parties to the JMR agreed that the VA examiner's September 2023 retrospective opinion did not adequately provide the measurements directed by the Board in the February 2023 remand. Nor was it "apparent that the [examiner's] inability to provide [a more comprehensive] opinion without resorting to speculation 'reflect[ed] the limitation of knowledge in the medical community at large' and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner." Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In the March 2025 JMR, the parties also agreed that the February 2024 Board decision was supported by inadequate reasons and bases to the extent that the Board decision did not address or consider the ameliorative effects of ibuprofen on his right knee condition. At the November 2025 Board hearing, the Veteran also described the use of muscle relaxers that minimally helped alleviate his pain and resulting symptoms. Pursuant to Ingram v. Collins, 38 Vet. App. 130 (2025) (appeal pending), the Board must discount the beneficial effects of medication when assigning an evaluation of a musculoskeletal disability. The determination of whether the Veteran's use of ibuprofen, muscle relaxers, and other modalities to treat his right knee disability results in any ameliorative effects-and if so, whether the Veteran's functional capacity would be worse absent the use of his treatment modalities-is a purely medical question outside of the Board's factfinding proficiency. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The claim must be remanded for an updated VA examination. At the November 2025 Board hearing, the Veteran testified regarding a subjective worsening of his condition since the last examination in September 2023. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, a new examination is warranted for the examiner to address the Veteran's lay reports of effusion/clicking in the right knee and the impact, if any, on his functional capacity to move the knee or whether these symptoms suggest the presence of a meniscal condition. Next, the VA examiner is directed to issue a retrospective opinion, to the extent possible, that addresses the Correia factors and resulting functional loss from the December 2015 VA examination. Lastly, the VA examiner is requested to address the ameliorative effects of medication on the Veteran's disability as required by Ingram, supra. In the March 2025 JMR, the parties argued that the February 2024 Board decision did not address the Veteran's argument that the September 2023 VA examination was inconsistent with his lay reports that "his [] symptoms during flare-ups support a greater loss of range of motion during flare-ups and with repeated use over time." It is unclear to the Board how these lay reports are inconsistent with the September 2023 VA examination findings, as initial active and passive range of motion testing showed forward flexion limited to 110 degrees and the examiner opined that the Veteran's forward flexion would be additionally limited to 105 degrees during flare-ups or following repeated use over time. In the April 2025 appellate brief, the Veteran's Court counsel argued that a "minor 5 degree loss of [range of motion] during flare-ups" is inconsistent with the Veteran's lay reports of "severe symptoms during flare-ups." The VA examiner is in the best position to assess the Veteran's lay reports and estimate their impact on functional loss. It is beyond the attorney's scope and expertise to argue vague reports of severe symptoms should result in functional loss greater than a 5-degree deviation compared to normal, especially when not all symptoms result in functional deficits. The need to rest or elevate the legs during a flare-up does not reasonably equate to limitation of motion, as it does not involve flexion or extension of the knee. See February 2024 appellate brief. The evidence received on November 5, 2025 suggests that outstanding VA treatment records exist, and upon remand, the RO is requested to associate all VA treatment records with the electronic claims file for evidentiary review. 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the entire appellate period. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) The VA examiner must test the Veteran's active motion, passive motion, and pain with weightbearing and without weight-bearing. Range of motion findings for active and passive motion should be fully documented. (b.) The VA examiner must also elicit information regarding the functional loss during flare-ups or with repeated use over time and must opine as to whether functional ability would be additionally impacted after repeated use over time or during flare-ups. If feasible, the VA examiner should assess the additional functional impairment in terms of degrees of additional range of motion loss. (c.) In assessing the Veteran's limitation of motion, the VA examiner is requested to ensure that the findings assess the severity level without consideration of any ameliorative effects of medication (ibuprofen or muscle relaxers). (d.) The VA examiner is requested to address the Veteran's lay reports of effusion and clicking in the right knee and address whether these symptoms have resulted in any functional loss during the period on appeal, to include limitation of motion. If so, the degrees of limitation should be documented. (e.) The VA examiner is also requested to address whether the symptoms of effusion and clicking establish the presence of a clinically significant meniscal disability, or whether such a condition is otherwise supported by the evidence of record or physical examination findings. (f.) Pursuant to Correia, the VA examiner should provide a retrospective opinion dating back to the December 2015 VA examination regarding the Veteran's functional loss. Specifically, the examiner should provide estimates of range of motion findings for active motion, passive motion, and pain with or without weightbearing for both knees. If any of the above information cannot be rendered without resorting to speculation, the examiner must explain whether this is the result of a lack of knowledge among the medical community at large or due to any other reason, such as insufficient knowledge of the specific examiner or the need for unprocured testing. 3. The RO is requested to ensure that all medical opinions are supported by a complete explanatory rationale based on the VA examiner's medical expertise and clinical experience; current medical principles; and citations to the record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.