Veteranclaims’s Blog

May 23, 2015

Single Judge Application; Tatum, 23 Vet.App. at 156; 38 CFR §§ 4.7 and 4.21; Award of Higher Disability Rating

Excerpt from decision below:

“Moreover, to the extent that Ms. Broadway argues that the Court’s decision in Tatum
required the Board to discuss §§ 4.7 and 4.21, that case is distinguishable. In Tatum, the Court stated that § 4.7 was necessarily implicated when determining whether to award a  higher disability rating for hypothyroidism under 38 C.F.R. § 4.119, Diagnostic Code 7903, because the disability ratings under that diagnostic code are variable, not cumulative. 23 Vet.App. at 156. In other words, it would be possible to obtain a higher disability rating without meeting any or all of the criteria of a lower disability rating. Id. In this case, however, a 20% disability rating under Diagnostic Code 5258 is the only disability rating available. Accordingly, there is no possibility that Ms. Broadway’s disability picture “more nearly approximates” the criteria for a higher rating. 38 C.F.R. § 4.7.”

===============

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0427
VERNITA L. BROADWAY, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Vernita L. Broadway appeals through counsel a January 8,
2014, Board of
Veterans’ Appeals (Board)decision that denied entitlement to (1) a
disabilityrating in excess of 30%
for instability of the right knee, post-operative, prior to October 20,
2010; (2) a disability rating in
excess of 10% for a limitation of flexion1
of the right knee prior to October 20, 2010; and (3) a
disability rating in excess of 30% for a total right knee replacement from
December 1, 2011. Ms.
Broadway’s Notice of Appeal wastimely,and the Court has jurisdiction to
review the Board decision
pursuant to 38 U.S.C. § 7252(a). The parties neither requested oral
argument nor identified issues
thattheybelieverequireaprecedentialdecision of the Court. Becausethe
Board’s determination that
theOctober2007andDecember2011VAexaminationswereadequateisclearlyerroneous,
theCourt
will vacate the January 2014 Board decision and remand the matter for
further development and
readjudication consistent with this decision.
Flexion is “the act of bending or condition of being bent.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY
717 (32d ed. 2012) [hereinafter DORLAND’S].
1

I. FACTS
Ms. Broadway served on active duty in the U.S. Army from August 1979 to
August 1983.
InMay1994,aVAregionalofficegrantedMs.
Broadwayanoncompensabledisabilityrating
for chondromalacia of the right knee.2, 3
In May 1999, the regional office increased Ms. Broadway’s
disability rating for chondromalacia in her right knee to 30%, effective
July 1, 1993.
In September 2007, Ms. Broadwayfiled a claim for an increased
disabilityratingfor her right
knee disability. In October 2007, she underwent a VA joints examination.
The examiner noted that
[t]he pain in the right knee has continued to get worse and it has gotten
significantly
worse over the last week with seeming progression of the instability of
the knee. . . .
It is aggravated by standing thirty minutes[,] walking twenty yards[,]
going up and
down stairs, lifting ten pounds, [and] driving thirty minutes.
Record (R.) at 228. Ms. Broadway was diagnosed with “[d]egenerative joint
disease of the right
knee with status post[-]operative repair times three with knee pain and
moderate instability with
progression.” R. at 229. The examiner noted that Ms. Broadway’s knee ”
joints are painful on
motion. There is no additional limitation following repetitive use . . .
and no additional limitation
during flare-ups. There is moderate instability of the right knee.” Id.
In November 2007, Ms. Broadwaysubmitted a statement in support of her
claim stating that,
as a teacher, she is “required to be on [her] feet most of the day, [and]
by the end of the day[, her]
knees are sw[ollen] and in much pain.” R. at 240.
InJanuary2008,theregionalofficegrantedMs. Broadway’s
claimforanincreasedratingand
assigned, among other things, a new 10% disability rating for limitation
of motion in the right knee
and continued a 30% disability rating for instability of the right knee.4
In February 2008, Ms.
Broadway filed a Notice of Disagreement with the 30% disability rating
assigned for instability of
the right knee, and in June 2008, she perfected her appeal to the Board.
Chondromalacia is “softening of the articular cartilage, mostly in the
patella.” DORLAND’Sat 352. The patella
is “a triangular bone, about 5 [centimeters] in diameter, situated at the
front of the knee in the tendon of insertion of the
quadriceps extensor femoris muscle. Called also knee cap.” DORLAND’S at
1395.
3
2
The record does not indicate when Ms. Broadway initially filed her claim
for benefits.
The record indicates that Ms. Broadwaywas firstgranted a 30%
disabilityratingfor instabilityof the rightknee
from February 1, 1999, presumably after the period where she was granted a
temporary 100% disability rating for a third
surgery on that knee.
4
2

In August 2010, Ms. Broadway informed the regional office that she would
undergo total
right knee replacement surgery in October 2010 and requested a temporary
increase to a 100%
disability rating for the time when she would be unable to work. In
November 2010, the regional
office assigned Ms. Broadway a temporary 100% disability rating from
October 2010 to November
2011 and granted a separate 30% disability rating from December 2011 for a
right total knee
replacement, with associated limitation of motion, replacing both the 30%
disability rating assigned
for instability and the 10% disability rating assigned for limitation of
motion.
In October 2011, Ms. Broadway submitted a statement that, after her
October 2010 surgery,
she “continue[d] to have persistent pain, swelling, catching, [and]
weakness with limited degrees of
flexion and numbness (along the outside of [her] leg and down into [her]
right foot). [She is] unable
to stand and walk for a prolong[ed] time.” R. at 60.
In November 2011, the Board remanded Ms. Broadway’s claim for an increased
disability
rating for instability of the right knee. The Board also determined that a
new VA examination was
warranted to ascertain the current severity of Ms. Broadway’s right knee
disability. The Board
directed the VA examiner to “identify all diagnosable right knee disorder(
s) currently present, and
. . . include range-of-motion findings, including after repetition, in his
or her report. In addition, the
examiner should comment as to whether there is any additional functional
limitation due to factors
such as pain, weakness, incoordination, or fatigability.” R. at 76.
In December 2011, Ms. Broadway’s claim for an increased disability rating
was supported
by a written statement from her daughter. In that statement, Ms.
Broadway’s daughter informed VA
that she was “disappointed in the results after [Ms. Broadway’s] surgery
because[,] instead of seeing
improvement, [she has] seen nothing but agony, pain[,] and stress.” R. at
64. Ms. Broadway’s
daughter stated that,
after [the October 2010] surgery[,] I find [that] my mother comes home
veryagitated
and in pain. She cannot enjoy a normal day, her children or grandchildren
because
she has to tend to a swollen knee 99% of the time. I find that [she] is
often seeking
relief through ice packs, heating pads, and pain pills that she has to
take prior to
going to sleep.
Id.
3

That same month, Ms. Broadway underwent the requested VA medical
examination. The
examiner noted that Ms. Broadway “complain[ed] of occasional popping with
pain,” but did not
experience any locking, stiffness, or “feelings of giving way without
falling,” and that she “had a
total of [four] surgeries on the right knee.” R. at 49. Ms. Broadway used “[
n]o brace, but she uses
a cane when she anticipates increased activity. Walking is limited to
slightly less than one hour.
Standing limited to 30 minutes.” Id. Ms. Broadway also experienced flare-
ups that occurred “[o]n
a daily basis[,] causing her to seek rest in a chair at the end of her
work day. She does not seek bed
rest, medical attention, or become completely incapacitated.” Id. The
examiner recorded that Ms.
Broadway’s right knee flexion ended at 90 degrees and that objective
evidence of painful motion
began at 90 degrees. The examiner also reported that Ms. Broadway
experienced functional loss or
functional impairment of her knee, including less movement than normal and
pain on movement.
In the section labeled “other significant diagnostic test findings,” the
examiner stated that Ms.
Broadway”has had degenerative changes in the past, but has since had a
knee replacement. X[-rays]
show the knee replacement [is] in good alignment and [that there is] no
loosening. Bone scan is the
same.” R. at 58.
In January 2012, Ms. Broadway submitted a statement in support of her
claim that her knee
disability “make[s] it difficult/or slow[s] me from d[o]ing or wanting to
do every day things as in
putting [on] my socks and shoes, cooking, and or grocery shopping.
Basically it makes me not want
to do anything, or I have to plan how much I will be able to do.” R. at 44.
In April 2012, Ms.
Broadway submitted another statement in support of her claim stating that
she “continue[d] to have
chronic residuals consisting of severe painful motion or weakness” in her
right knee. R. at 30.
In January 2014, the Board issued the decision on appeal. The Board denied
entitlement to
a disability rating in excess of 30% for instability of the right knee,
prior to October 2010; a
disability rating in excess of 10% for limitation of flexion of the right
knee prior to October 2010;
and a disabilityratingin excess of 30% for a total right knee replacement
from December 2011. This
appeal followed.
4

II. ANALYSIS
On appeal, Ms. Broadway argues that (1) the Board erred by incorrectly
interpreting and
misapplying 38 C.F.R. § 4.71a, Diagnostic Code 5258; and (2) the Board’s
determination that the
October 2007 and December 2011 VA examinations were adequate is
clearlyerroneous. The Court
will address each argument below.
A. Diagnostic Code 5258
First, Ms. Broadway argues that the Board incorrectly interpreted and
misapplied 38 C.F.R.
§ 4.71a, Diagnostic Code 5258, because the Board required that she
fulfill all requirements of the rating criteria to establish entitlement to a disability rating under that diagnostic code. Ms. Broadway asserts that, pursuant to 38 C.F.R. §§ 4.7, 4.21, and the Court’s ruling in Tatum v. Shinseki, 23 Vet.App. 152, 156 (2009), she does not have to fulfill all the criteria, but must only demonstrate that her “symptoms more nearly approximate the criteria” under Diagnostic Code 5258. Appellant’s Brief (Br.) at 25. The Court finds this argument unpersuasive. The Board is required to consider and discuss in its decision all “applicable” provisions of law and regulation. 38 U.S.C. § 7104(a). Section 4.3 states, in pertinent part: “When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree
of disability[,] such doubt will be resolved in favor of the claimant.” 38 C.F.R. § 4.3 (2014). Section 4.7 provides: “Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if the disability picture more nearly
approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7 (2014). Section 4.21 states that “[i]n view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.” 38 C.F.R. § 4.21 (2014).
The criteria for a 20% disability rating for semilunar dislocated
cartilage under Diagnostic
Code 5258 require “frequent episodes of ‘locking,’ pain, and effusion into
the joint.” 38 C.F.R.
§ 4.71a, Diagnostic Code 5258 (2014) (emphasis added). A 20% disability
rating is the only rating
available under Diagnostic Code 5258. See id. When criteria are enumerated
within a disability
rating and are connected by the word “and,” all of the requirements for
that particular rating must be
demonstrated. See Watson v. Dep’t of the Navy, 262 F.3d 1292, 1299 (Fed.
Cir. 2001) (noting that
5

inclusion of conjunctive “and” clearly indicates that all three criteria
in 5 C.F.R. §§ 831.902 and
842.802 must be demonstrated); Heuer v. Brown, 7 Vet.App. 379, 385 (1995) (
holding that criteria
expressed in the conjunctive are connected by “and”).
In Heuer, the Court held that no substantive changes were made when 38 C.F.
R. § 3.385
(1992),whichpreviouslystatedthevarioushearingloss
levelsthatwouldnotbeconsideredevidence
of impaired hearing, was revised to restate the criteria that would
demonstrate the evidence of a
disability due to impaired hearing. 7 Vet.App. at 385. The Court stated
that,
[i]n defining a negative–the circumstances under which service
connection may not
be established–the criteria listed were properly expressed in the
conjunctive
(connected by “and”) because in order for service connection to be
excluded[,] all of
the criteria . . . had to be present. The effect was that if any one of
the criteria were
satisfied, then service connection was allowable. The revised § 3.385
made this
construction plain on its face by defining what would be considered a
disability . . .
in terms of the existence of a hearing acuity level above any one of the
threshold
criteria.
Id. (emphasis added).
Similarly, the use of the word “and” in Diagnostic Code 5258 signifies
that frequent episodes
of locking, pain, and effusion must be present to establish entitlement of
a 20% disability rating for
semilunar dislocated cartilage. See 38 C.F.R. § 4.71a, Diagnostic Code
5258. Therefore, the Court
concludes that the Board did not err in its finding that all three
elements must be present when
considering the potential applicability of Diagnostic Code 5258.
In applying Diagnostic Code 5258, the Board found that, during the period
at issue, VA
examiners identified pain, effusion, and crepitus in Ms. Broadway’s right
knee, and that Ms.
Broadway complained of occasional “locking” in her right knee. R. at 17.
The Board, however,
found that
[t]he October 2007 examination report and VA treatment records . . . do
not indicate
[that Ms. Broadway] experienced “frequent episodes of ‘locking'” or even
that [Ms.
Broadway] reported experiencing more than occasional episodes of “locking.”
Furthermore, the Board notes [that Ms. Broadway] could not reproduce the
locking
symptom while being evaluated by the VA orthopedic clinic in June 2010.
Thus,
while pain and effusion were present prior to October 20, 2010, frequent
episodes of
“locking” were not and the criteria for a compensable rating under
Diagnostic Code
5258 are [therefore] not met.
6

Id.
A review of the record confirms the Board’s findings that Ms. Broadwaydid
not demonstrate
frequent episodes of locking, as the Court has determined is required
under Diagnostic Code 5258.
See R. at 256 (September 2007 medical note: “Occasionally the right knee
‘locks’ during or after
exercise.”); R. at 973 (April 2008 medical note: “Recently, [Ms. Broadway]
has had some catching
and locking in her right knee with sharp pain.”); R. at 923 (June 2010
medical note: “Pain is
constant, has occasional swelling and does have locking symptoms where [Ms.
Broadway] feels she
has to manually move the knee.”). Accordingly, the Court concludes that
the Board’s determination
that a 20% disability rating under Diagnostic Code 5258 is not warranted
is not clearly erroneous.
See 38 U.S.C. § 7261(a)(4); Russo v. Brown, 9 Vet.App. 46, 50 (1996).
To the extent that Ms. Broadway cites a June 2011 medical note as evidence
that she had a
“constant catching sensation” in her right knee as evidence that she
experienced frequent episodes
of locking, Appellant’s Br. at 27 (citing R. at 1035), that medical
evaluation post-dates the period at
issue and is, therefore, not relevant.
Moreover, to the extent that Ms. Broadway argues that the Court’s decision in Tatum
 required the Board to discuss §§ 4.7 and 4.21, that case is distinguishable. In Tatum, the Court stated that § 4.7 was necessarily implicated when determining whether to award a
higher disability rating for hypothyroidism under 38 C.F.R. § 4.119, Diagnostic Code 7903, because the disability ratings under that diagnostic code are variable, not cumulative. 23 Vet.App. at 156. In other words, it would be possible to obtain a higher disability rating without meeting any or all of the criteria of a lower disability rating. Id. In this case, however, a 20% disability rating under Diagnostic Code 5258 is the only disability rating available. Accordingly, there is no possibility that Ms. Broadway’s disability picture “more nearly approximates” the criteria for a higher rating. 38 C.F.R. § 4.7.
Further, because the criteria under Diagnostic Code 5258 are, as the Court
found above, conjunctive, the Board was not obligated to consider that “it is not expected . . .  that all cases will show all the findings specified.” 38 C.F.R. § 4.21.
Finally, although the Board did not more fully discuss the application of
and interplay
between 38 C.F.R. §§ 4.3, 4.7, and 4.21, absent evidence that the Board
clearly erred in finding that
Ms. Broadway did not suffer from frequent episodes of locking in her right
knee, the Board’s
7

consideration of the application of and interplay between those sections
would have no effect on the
outcome of the decision. As previously stated, because a 20% disability
rating under Diagnostic
Code 5258 is the only disability rating available, there were no other
disability ratings for the Board
to consider under that diagnostic code, and thus implicate §§ 4.3, 4.7,
or 4.21. Accordingly, any
error on the part of the Board regarding the absence of a discussion of
these regulations is harmless.
See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38
U.S.C. § 7261(b)(2)
(requiring the Court to “take due account of the rule of prejudicial error
“).
B. Adequacy of the Medical Examinations
1. October 2007 VA Examination
Next, Ms. Broadway argues that the Board’s determination that the October
2007 VA
examination was adequate is clearlyerroneous. Ms. Broadwaycontends that,
pursuant to the Court’s
ruling in Mitchell v. Shinseki, 25 Vet.App. 32 (2011), the VA examiner was
required to determine
“at what point [her] pain began and at what point in the range of motion [
her] functional limitations
due to that pain began.” Appellant’s Br. at 19. The Court finds this
argument persuasive.
In Mitchell, the Court noted that the examiner recorded that the appellant
was experiencing
pain throughout the range of motion in her left knee, but that, although
the examiner noted no
additional limitation after repetitive use, the examiner failed to
determine the degree of range of
motion loss due to pain. 25 Vet.App. at 44. The Court stated that “it is
unclear from the examiner’s
notation regarding the appellant’s range of motion on flexion and
extension of her leg whether and
at what point during the range of motion the appellant experienced
anylimitation of motion that was
specifically attributable to pain.” Id. The Court directed the Board to
return the examination
“[b]ecause the examiner failed to address any range-of-motion loss
specifically due to pain and any
functional loss during flare-ups,” or explain why such action was not
necessary. Id.
Here, the Board noted the range of motion findings from the October 2007
VA examination
and noted that, although Ms. Broadway experienced painful motion
warranting a 10% disability
rating, the limitation of flexion of the right knee did not warrant a
disability rating in excess of 10%.
R. at 16, 17. The examiner’s report, however, did not provide any evidence
that she examined Ms.
Broadwayfor”anyrange-of-motion loss specificallydue to pain and
anyfunctionalloss duringflare-
ups.” Mitchell, 25 Vet.App. at 44. The Board failed to address that
crucial fact.
8

Accordingly, the Court concludes that the Board’s determination that the
October 2007 VA
examination was adequate is clearly erroneous and that remand is warranted.
See 38 U.S.C.
§ 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97, 103 (2008); Gilbert v.
Derwinski, 1 Vet.App. 49,
52 (1990); see also Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (
emphasizing the Board’s duty to
return inadequate examination report); 38 C.F.R. § 4.2(2014)(“it
isincumbentupontheratingboard
to return the report as inadequate for evaluation purposes.”).
2. December 2011 VA Examination
Next, Ms. Broadway argues that the Board’s determination that the December
2011 VA
examination was adequate is clearly erroneous. Ms. Broadway contends that
the December 2011
examiner’s report “does not contain any information regarding where the
range of motion pain
occurred on repetition and where functional loss due to pain began.”
Appellant’s Br. at 17-18. The
Court also finds this argument persuasive.
Here, the Board stated that the December 2011 VA examiner noted that Ms.
Broadway “did
not display objective signs of pain during repeated right knee extensions
and only did so at 90
degrees during repeated right knee flexions.” R. at 19-20. The Board also
stated that, “while [Ms.
Broadway] does experience dailyflare-ups, she does not seek bed rest,
medical attention, or become
completely incapacitated.” R. at 20. The Board ultimately found that the
medical evidence did not
demonstrate that a 60% disability rating under Diagnostic Code 5055 was
warranted. Id.
The Board, however, did not acknowledge that the December 2011 examiner
failed to
determine “any range-of-motion loss specifically due to pain and any
functional loss during flare-
ups.” Mitchell, 25 Vet.App. at 44. Indeed, the examiner recorded that Ms.
Broadway’s right knee
flexion ended at 90 degrees, where the normal endpoint is 140 degrees, and
that objective evidence
of painful motion began at 90 degrees. R. at 49. The examiner, however,
failed to determine at what
point Ms. Broadway’s loss of range of motion was specifically due to pain
or at what point Ms.
Broadway’s evidence of painful motion ended. The examiner also stated that
Ms. Broadway
experienced flare-ups on a daily basis, but did not provide any opinion
whether Ms. Broadway
experienced functional loss due to those flare-ups. See id. Further, the
Board provided no reason
for its emphasis on the fact that Ms. Broadway did not seek bed rest,
medical attention, or become
completely incapacitated, was relevant to its determination, given that a
60% disability rating under
9

Diagnostic Code 5055 does not require such findings. See 38 C.F.R. § 4.
71a, Diagnostic Code 5055
(2014)(kneereplacement (prosthesis)requires ”
chronicresidualsconsistingofseverepainful motion
or weakness in the affected extremity”).
Accordingly,theCourt concludes thattheBoard’sdetermination
thattheDecember2011VA
examination was adequate is clearly erroneous and that remand is warranted.
See 38 U.S.C.
§ 7261(a)(4); D’Aries, 22 Vet.App. at 103; Gilbert, 1 Vet.App. at 52; see
also Bowling,
15 Vet.App. at 12; 38 C.F.R. § 4.2.
On remand, the Board will obtain a new medical opinion that addresses Ms.
Broadway’s loss
of range of motion and anyfunctional loss both due to pain for both time
periods at issue. The Board
must also determine whether a retrospective medical opinion is warranted
and, if so, must obtain
one. If the Board determines that one is not required, it must adequately
explain that decision. See
Chotta v. Peake, 22 Vet.App. 80, 85-86 (2008) (retrospective medical
opinion maybe helpful under
certain circumstances but must not resort to speculation).
C. Other Arguments
Finally, Ms. Broadway has raised other arguments relating to the Board’s
decision. In
particular, Ms. Broadway argues that, although the Board found her and her
daughter’s statements
to be competent and credible to describe Ms. Broadway’s symptoms of pain,
the Board failed to
“weighitsrelianceonthe[December2011VA] examiner’s conclusionsagainst [
thelay] statements.”
Appellant’s Br. at 8. Because the Court is remanding Ms. Broadway’s claims
and the Board must
necessarily reconsider all the evidence, including these lay statements,
the Court need not address
those arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (
2001) (per curiam order) (“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.”). Ms. Broadway is free to raise them to the Board.
On remand, Ms. Broadwayis free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail a
critical examination of the
justification for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.
App. 394, 397 (1991). In
10

addition, the Board shall proceed expeditiously, in accordance with 38 U.
S.C. § 7112 (expedited
treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the January2014 Board decision is
VACATED and the
matter is REMANDED for further development and readjudication consistent
with this decision.
DATED: April 30, 2015
Copies to:
Matthew J. Ilacqua, Esq.
VA General Counsel (027)
11

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