Veteranclaims’s Blog

April 10, 2013

Single Judge Application; Mitchell v. Shinseki, 25 Vet.App. 32 (2011); 38 C.F.R. §§ 4.40 and 4.45; Functional Loss During “Flare Ups”; “Clear Picture” of Disability

Excerpt from decision below:

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“The examiner, however, never specifically discussed how the appellant’s pain affected his range of motion or if it caused a functional loss in the use of the appellant’s knee.”
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“n Mitchell, the Court stated that, “although pain may cause a functional loss, pain itself does not constitute functional loss.” 25 Vet.App. at 37. The Court determined that “[p]ain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits
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the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'” Id. at 38 (quoting 38 C.F.R. § 4.40). The Court stated that when pain is associated with movement, to be adequate for rating purposes an examination must “compl[y] with the requirements of § 4.40, and the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when [the affected body part] is used repeatedly over a period of time.” . . . Such “determinations would, if feasible, be ‘portray[ed]’ . . . in terms of degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 43-44 (quoting DeLuca, 8 Vet.App. at 206).
====================

“The reasoning in Mitchell is directly applicable to this case, and because the examiner in this case did not describe “whether and at what point during the range of motion the appellant
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experienced any limitation of motion that was specifically attributable to pain,” his examination report did not give the Boarda “clear picture” of the appellant’s disorder and is thus inadequate. Id.

The examination report is inadequate for two additional reasons. First, the examiner indicated that the appellant was experiencing joint swelling, effusion, tenderness, or laxity in his left knee. R. at 256. The examiner was asked to further describe these symptoms, but failed to do so.Id. The examiner also appears to have indicated that the appellant hyperextended his knee during
range of motion testing. Id.; see 38 C.F.R. § 4.71, Plate II (2012). He does not further explain this abnormality in the appellant’s range of motion. An examination report must include “sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'” Stefl v.
Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (an examination report must contain “clear conclusions,” “supporting data” and a “reasoned medical explanation connecting the two.”). This examination report did not. For these reasons, the Court finds the Board’s determination that the July 2010 VA medical examination report is adequate is clearly erroneous.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0057
LLOYD K. HEKEL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

PIETSCH, Judge: The appellant, Lloyd K. Hekel, appeals through counsel a November 21, 2011, Board of Veterans’ Appeals (Board) decision in which the Board (1) denied the appellant entitlement to a disability rating greater than 10% prior to May 1, 2006, and greater than 20% after May 1, 2006, for residuals of a stress fracture of the left tibia with post-traumatic chondromalacia of the left patella, status post arthroscopic surgery; (2) denied the appellant entitlement to a disability rating greater than 10% for left knee degenerative joint disease; and (3) denied the appellant entitlement to a total disability rating based on individual unemployability (TDIU).1 Record (R.) at 3-24. This appeal is timely and the Court has jurisdiction over the matters on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.
1 On at least three occasions during the time periods discussed in the Board’s decision, VA granted the
appellant temporary total disability ratings to compensate him for surgical procedures and periods of convalescence.
R. at 4-5, 49, 1628, 1630, 2022-23. The Board’s decision disregards these periodical assignments of a total disability
rating and concentrates on the appropriate disability rating for the usual manifestation of the appellant’s disorder. R. at
3.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from January 1967 until December
1968. R. at 2302. In February 1997, the VA regional office (RO) granted the appellant entitlement
to disability benefits for residuals of a stress fracture of his left tibia. R. at 2212-13. The RO,
however, determined that a compensable disability rating was not warranted for the appellant’s
disorder. Id. In January 2005, the RO granted the appellant entitlement to a 10% disability rating
for his left knee disorder effective September 1, 2004. R. at 2022-25.
According to a March 2006 VA medical examination report, the appellant was experiencing
constant moderate knee pain and occasional severe knee pain caused by kneeling or squatting. R.
at 1972. His severe pains occurred on a daily basis and usually lasted for a few hours. Id. The
appellant also stated that his pain was accompanied by weakness, stiffness, heat, instability, fatigue,
and lack of endurance. R. at 1972-73. The examiner noted that the appellant had trouble rising from
a chair in the waiting area of the facility where his examination was conducted and that he walked
with an antalgic gait. R. at 1974. The appellant was able to flex his knee to 130o. Id. He
experienced pain throughout his flexing movement, however, and the examiner opined that his range
of motion was reduced by 10o “primarily due to pain and to a lesser extent due to weakness,
fatigability and lack of endurance.” Id. The examiner diagnosed the appellant with post-traumatic
chondromalacia of the left knee. R. at 1974.
In January 2007, the RO denied the appellant a disability rating greater than 10% for the
residuals of a stress fracture of the left tibia with post-traumatic chondromalacia of the left patella
and denied him entitlement to TDIU. R. at 1628-31. In February 2007, the RO issued a Statement
of the Case again denying the appellant an increase in the disability rating assigned to his disorder.
R. at 1595-1609. In July 2007, the appellant appealed to the Board. R. at 1516-18. The appellant
asserted that he experiences “chronic daily pain” in his knee and that his “activities are severely
limited” as a result of his disorder. R. at 1518.
According to a September 2007 VA medical examination report, the appellant experienced
left knee pain “after walking one block,” left knee pain, fatigability, and lack of endurance when “he
walks on inclines, steps, stairs, curbs, or ladders,” left knee “stiffness after sitting,” and daily flareups
in his left knee caused by use. R. at 1494-95. The examiner observed that the appellant walked
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with an antalgic gait. R. at 1496. The examiner reported that the appellant flexed his knee to 120o.
R. at 1496. At that point, he experienced pain. Id. The examiner opined that the appellant’s pain
resulted in a functional loss equivalent to 5 degrees of flexion. Id. The appellant was able to extend
his knee to 0o without pain, and the examiner found that his ligaments were stable. Id. The
examiner diagnosed the appellant with a knee strain without arthritis. R. at 1497.
In September 2008, the RO increased the disability rating assigned to the appellant’s disorder
to 20%, effective May 1, 2006. R. at 1442-44, 1447-51. Also in September 2008, the RO issued a
Statement of the Case in which it continued to deny him entitlement to TDIU. R. at 1456-70.
In an October 2009 hearing before the Board, the appellant stated that he has “pain all the
time in my knee.” R. at 862. The appellant also reported that “I’ve fallen numerous times because
my knee just gives out and I do have once in a while like a locking sensation.” Id. The appellant’s
wife also reported that the appellant is “very unstable” and that he has fallen. R. at 867-68.
In a June 2010 decision, the Board remanded the appellant’s claim for an increased disability
rating for residuals of a stress fracture of the left tibia with post-traumantic chondromalacia of the
left patella and his request for entitlement to TDIU for additional development. R. at 705-28. The
Board noted that the appellant last underwent a VA medical examination in September 2007. R. at
725. The Board determined that, because the appellant’s most recent VA examination was dated and
because the appellant had asserted that his condition had worsened, a new examination should be
ordered. R. at 725-26.
According to a July 2010 VA medical examination report, the appellant was suffering from
pain, stiffness, and limited motion in his left knee, but experienced no flare-ups of his joint disease.
R. at 251. The appellant’s symptoms included a feeling of heaviness, fatigability, and aching in his
left lower extremity. R. at 252. The examiner stated that the appellant’s gait was antalgic and that
he used a cane. R. at 253. The examiner was asked whether the appellant was experiencing
swelling, effusion, tenderness, or laxity in a joint, and the examiner responded in the affirmative.
R. at 256. He was asked to list the joints involved and describe these symptoms. Id. He responded
that these symptoms appear in the appellant’s left knee, but he gave no further description of the
symptoms or their effects. Id. The examiner stated that the appellant’s range of motion in his left
knee was from -20o to 120o. Id. He reported that the appellant experienced pain on active motion
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and pain after he moved through his range of motion at least three times. Id. The examiner stated,
however, that the appellant experienced no additional limitations of motion after repetition. Id. The
examiner diagnosed the appellant with degenerative joint disease in his left knee and stated that the
appellant’s disorder resulted in decreased mobility, difficulty lifting and carrying objects, a lack of
stamina, weakness or fatigue, decreased strength in the lower extremity, and pain. R. at 262. The
examiner reported that the appellant is “[u]nable to do physical work involving knee bending.” R.
at 263.
In July 2011, the RO granted the appellant entitlement to disability benefits for left knee
degenerative joint disease and assigned his disorder a 10% disability rating effective July 6, 2010.
R. at 46-51. In August 2011, the RO issued a Supplemental Statement of the Case denying the
appellant an increased disability rating for residuals of stress fractures of the left tibia with posttraumatic
chondromalacia of the left patella and denying him entitlement to TDIU. R. at 60-72.
In October 2011, the appellant argued to VA that his July 2010 medical examination was a
“travesty.” R. at 29. The appellant stated that the examiner was distant and unprofessional and that
he “caused an enormous amount of pain during the exam.” Id. The appellant stated that the
examiner used physical force to cause his knee to extend to 0o. Id. The appellant stated that his knee
has not been able to extend so far in more than three years. Id. He asserted that the examiner was
biased and “failed to conduct this exam in a fair and courteous manner.” Id.
In its November 21, 2011, decision here on appeal, the Board denied the appellant
entitlement to a disability rating greater than 10% prior to May 1, 2006, and entitlement to disability
rating greater than 20% after that date, for residuals of a stress fracture of the left tibia with posttraumatic
chondromalacia of the left patella, status post arthroscopic surgery. R. at 3-24. The Board
also denied the appellant entitlement to a disability rating greater than 10% for left knee degenerative
joint disease, and denied him entitlement to TDIU. Id. The Board determined that the appellant’s
left knee disorder resulted in chronic pain and additional functional loss caused by pain, fatigability,
lack of endurance, or weakness, but it concluded that the appellant suffers from “no more than a
moderate left knee disability.” R. at 5-6.
Next, the Board acknowledged the appellant’s descriptions of his symptoms and noted that
the appellant “is competent to report a sensation of giving way, buckling, or instability, as this is
4
observable with his own senses.” R. at 15. The Board found, however, that the appellant “is not
competent to testify as to the cause of such sensation.” R. at 16. The Board then reviewed the
medical evidence in the record and concluded that “the weight of the evidence does not establish that
any instability of the left knee is due to the service-connected left knee condition.” Id. Finally, the
Board addressed whether the appellant’s case should be referred for extraschedular consideration,
but found that it should not. R. at 19-20.
The appellant raised four arguments on appeal. First, he asserted that the medical
examinations relied on by the Board are inadequate. Appellant’s Brief (Br.) at 4-7; Reply Br. at 2-4.
Second, the appellant argued that the Board inappropriately rejected his lay testimony. Appellant’s
Br. at 7-8; Reply Br. at 4-5. Third, he argued that the Board erred in its determination that referral
for extraschedular consideration is not warranted in this case. Appellant’s Br. at 9-11. Finally, he
asserted that the Board’s conclusion is not supported by an adequate statement of reasons or bases.
Id. at 11-12.

II. ANALYSIS
A. July 2010 VA Medical Examination
The appellant asserted that the July 2010 VA medical examination report is inadequate because the examiner “did not discuss whether the [appellant] experienced functional loss due to his pain in this case.” Appellant’s Br. at 6. Whether a medical examination report is adequate is generally a finding of fact that the Court reviews under the “clearly erroneous” standard of review.
See 38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
When it makes factual determinations, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions adequate to enable an appellant to understand
the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative
value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown,
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7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert,
1 Vet.App. at 57.
The appellant’s argument relies on Mitchell v. Shinseki, 25 Vet.App. 32 (2011), a case in which the Court discussed the appropriate application of the statutory language set forth in 38 C.F.R. §§ 4.40 and 4.45. Appellant’s Br. at 4-6. Pursuant to § 4.45, regarding joints, “the factors of disability reside in reductions of their normal excursion of movements in different planes,” and,
when analyzing a joint disability, “[i]nquiry will be directed to” changes in movement, weakened movement, excess fatigability, incoordination, and “[p]ain on movement.” Pursuant to § 4.40, [d]isability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled.
“Sections 4.40 and 4.45 together . . . make clear that pain must be considered capable of producing compensable disability of the joints.” Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). In DeLuca v. Brown, 8 Vet.App. 202, 205 (1995), the Court rejected the Secretary’s argument that “any regulation that specifies a rating for limitation of motion ipso facto includes a rating for pain.” The Court thus concluded that it is appropriate to consider “a higher [disability] rating based on a greater limitation of motion due to pain on use including during flare-ups” and that a VA medical examiner should consider the factors stated in § 4.40 and determine if an appellant’s disorder exhibits “functional loss on use or due to flare-ups.” Id. at 206.

The Court further clarified how the Board should apply this requirement in Mitchell. In Mitchell, the Court stated that, “although pain may cause a functional loss, pain itself does not constitute functional loss.” 25 Vet.App. at 37. The Court determined that “[p]ain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits
6

the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'” Id. at 38 (quoting 38 C.F.R. § 4.40). The Court stated that when pain is associated with movement, to be adequate for rating purposes an examination must “compl[y] with the requirements of § 4.40, and the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when [the affected body part] is used repeatedly over a period of time.” . . . Such “determinations would, if feasible, be ‘portray[ed]’ . . . in terms of degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 43-44 (quoting DeLuca, 8 Vet.App. at 206).
The July 2010 examiner recorded both that the appellant experienced pain while actively
moving his knee and that pain was present after the appellant moved his knee through its range of
motion at least three times. R. at 256. The examiner also stated that the appellant experienced no additional limitations of motion after repetitive motion. Id. The examiner, however, never specifically discussed how the appellant’s pain affected his range of motion or if it caused a functional loss in the use of the appellant’s knee.
In Mitchell, a VA examiner recorded the range of motion in the appellant’s joint, noted that the appellant experienced pain throughout her range of motion, and noted that there was no additional limitation in the motion after repetitive use. 25 Vet.App. at 44. The Court found:
Although the examiner noted no additional limitation after repetitive use, the
examiner made no initial finding as to the degree of range-of-motion loss due to pain on use, as required by DeLuca. Thus, it is unclear from the examiner’s notation . . . whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain. It is important for the medical examiner to note this information so that the VA rating official can have a clear picture of the nature of the [appellant’s] disability and the extent to which pain is disabling. This will allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the [appellant’s] disability. Id.
The reasoning in Mitchell is directly applicable to this case, and because the examiner in this case did not describe “whether and at what point during the range of motion the appellant
7

experienced any limitation of motion that was specifically attributable to pain,” his examination report did not give the Board a “clear picture” of the appellant’s disorder and is thus inadequate. Id.
The examination report is inadequate for two additional reasons. First, the examiner indicated that the appellant was experiencing joint swelling, effusion, tenderness, or laxity in his left knee. R. at 256. The examiner was asked to further describe these symptoms, but failed to do so.Id. The examiner also appears to have indicated that the appellant hyperextended his knee during
range of motion testing. Id.; see 38 C.F.R. § 4.71, Plate II (2012). He does not further explain this abnormality in the appellant’s range of motion. An examination report must include “sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'” Stefl v.
Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (an examination report must contain “clear conclusions,” “supporting data” and a “reasoned medical explanation connecting the two.”). This examination report did not. For these reasons, the Court finds the Board’s determination that the July 2010 VA medical examination report is adequate is clearly erroneous.

B. Other VA Medical Examination Reports
In his brief, the appellant alleged that “medical opinions relied upon by the Board are unclear
as to when and at what point the [appellant] experienced limitation of motion on flexion and
extension due to pain,” and are thus inadequate. Appellant’s Br. at 5. The appellant also stated that
the medical opinions are not consistent with each other and are “speculative at best.” The appellant,
however, only specifically discussed and cited to the July 2010 examination report. Id. at 6. The
Secretary argued that the appellant “fails to specify which examinations he is referring to or to point
to any support for his assertions in the record.” Secretary’s Br. at 6. In response, the appellant stated
that he had identified the inadequate opinions by stating that they are those relied on by the Board.
Reply Br. at 2. He further indicated that these opinions are found in examination reports dating to
January 2005, March 2006, and September 2007, as well as in the July 2010 examination report. Id.
The January 2005 medical report is not in the record of proceedings submitted to the Court,
and, as a consequence, the Court is unable to address its adequacy. The Court notes that, although
it is the Secretary’s responsibility to file a record, Rule 28.1(b) of the Court’s Rules of Practice and
8

Procedure allows the appellant to file a motion disputing the record within 14 days after it has been
served. The appellant did not dispute the absence of the January 2005 report from the record.
The appellant’s acknowledgment in his reply brief that he did not specifically refer to the
March 2006 and September 2007 examination reports in his initial brief supports the Secretary’s
assertion that he made blanket arguments concerning these reports and did not provide the kind of
detailed argument with citations to the record required for the Court to address his complaint. See
Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain
underdeveloped arguments); Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (stating that an
appellant must “plead with some particularity the allegation of error so that the Court is able to
review and assess the validity of the appellant’s arguments”), rev’d on other grounds sub nom. Coker
v. Peake, 310 F. App’x 371 (Fed. Cir. 2008); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)
(holding that the appellant bears the burden of demonstrating error on appeal), aff’d per curiam, 232
F.3d 908 (Fed. Cir. 2000) (table). The Court, therefore, finds that the appellant has not demonstrated
that these two examination reports are inadequate.

C. Other Matters
Because additional development conducted by the Board on remand will alter the evidentiary
basis for the Board’s decision, the Court will not at this time address the appellant’s other arguments,
including whether the Board properly analyzed his lay evidence and whether it properly considered
whether referral of his case for extraschedular consideration is warranted. See Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at the readjudication, and,
of course, before this Court in an appeal, should the Board rule against him”). On remand, the
appellant is free to submit additional evidence and argument on the remanded matters, and the Board
is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App.
529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The
Court has held that “[a] remand is meant to entail a critical examination of the justification for the
decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious
treatment” of claims remanded by the Court).
9

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the November 21, 2011, Board decision is VACATED and the matter is REMANDED for further
proceedings consistent with this decision.
DATED: April 8, 2013
Copies to:
Michael R. Viterna, Esq.
VA General Counsel (027)
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