Veteranclaims’s Blog

August 12, 2017

Single Judge Application; Mitchell, 25 Vet.App. at 43; see DeLuca, 8 Vet.App. at 206; 38 C.F.R. § 4.40;

Excerpt from decision below:

“Although pain itself does not rise to the level of functional loss, when evaluating disabilities of the musculoskeletal system under DCs based on limitation of motion, the medical examiner must consider pain that results in functional loss. Mitchell, 25 Vet.App. at 43; see DeLuca, 8 Vet.App. at 206. A functional loss results when the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance” is inhibited. 38 C.F.R. § 4.40.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1599
DANIEL L. MOY, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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, Daniel L. Moy, served in the U.S. Army from June 1968 to June 1970. Record (R.) at 24. He appeals, through counsel, a March 8, 2016, Board of Veterans’ Appeals (Board) decision that denied entitlement to a schedular disability rating in excess of 10% for limitation of extension of the right knee under 38 C.F.R. § 4.71a, diagnostic code (DC) 5261, from December 23, 2005.1 R. at 1-23. Single-judge disposition is appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will affirm the March 8, 2016, decision.
I. BACKGROUND
In July 2003, the appellant filed a claim for entitlement to service connection for a right
knee disability. R. at 1791-1800. In a November 2003 rating decision, the Houston, Texas, VA
regional office (RO) awarded service connection for “post traumatic degenerative joint disease,
1 The Court lacks jurisdiction over the issues of entitlement to an extraschedular rating in excess of 10% for
limitation of extension of the right knee and a total disability rating based on individual unemployability that the Board
remanded, and they will not be addressed further. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d
1341, 1344 (Fed. Cir. 2000).
2
right knee status post arthrotomy” and assigned a 10% disability rating under § 4.71a, DC 5010
(traumatic arthritis), effective July 3, 2003. R. at 891, 940-43. The appellant appealed the rating
assigned. See R. at 830-40 (November 2004 Statement of the Case). During the pendency of the
appeal, the RO increased the rating to 20% under DC 5010-5257 (traumatic arthritis with recurrent
subluxation or lateral instability of the knee), effective December 23, 2005. R. at 722-24 (June
2006 rating decision). In an August 2009 decision, the Board denied increased initial and staged
ratings for the right knee disability; the appellant appealed to this Court. R. at 384-401. In an
October 2011 memorandum decision, the Court found no error as to the Board’s application of DC
5260 (limitation of flexion), but remanded the issues of entitlement to separate ratings under DC
5259 (removal of semilunar cartilage) and DC 5261 (limitation of extension). R. at 313-23.
Following additional development on remand, VA’s Appeals Management Center (AMC)
awarded a separate rating for limitation of flexion of the right knee in a December 2012 rating
decision. R. at 205-09. The AMC assigned a noncompensable rating effective July 3, 2003, and
increased the rating to 10% as of May 4, 2006, specifically noting that the increased rating was
warranted in light of functional loss due to painful motion. R. at 206. In a September 2013
decision, the Board denied entitlement to a separate or higher initial rating under DC 5259 from
July 3, 2003, and denied a separate rating in excess of 20% under DC 5261 from December 23,
2005. R. at 158-179. On appeal to this Court, the parties entered into a joint motion for remand
(JMR), agreeing that “none of the VA examiners opined that [the appellant’s] arthritis pain and
limitation of motion accounted for all of his symptoms.” R. at 136.
In a March 2015 decision, the Board awarded a separate rating for a meniscectomy of the
right knee under DC 5259, effective from July 3, 2003, as well as a separate 10% rating for right
knee limitation of extension under DC 5261, effective from December 23, 2005. R. at 104-26. On
appeal to this Court, the parties entered into a joint motion for partial remand specifically regarding
the Board’s denial of a schedular rating in excess of 10% for right knee limitation of extension
from December 23, 2005. R. at 72-77. The parties agreed that the Board’s statement of reasons
or bases was unclear in light of inconsistencies in its findings concerning the appellant’s limitation
of extension. R. at 74.
In the March 2016 decision currently on appeal, the Board denied entitlement to a schedular
rating in excess of 10% for limitation of extension of the right knee under DC 5261. R. at 1-23.
In its decision, the Board determined that the preponderance of the evidence showed that extension
3
of the right knee was best characterized as being limited to 10 degrees when taking into account
the appellant’s complaints of pain and flare-ups. R. at 5.
II. ANALYSIS
The appellant’s sole argument on appeal is that the Board erred in relying on an August
2012 VA examination report that failed to adequately address his range-of-motion limitations.
Appellant’s Brief (Br.) at 6-10. The Secretary argues that the appellant is precluded from
challenging the adequacy of the August 2012 examination because he failed to raise the argument
in prior appeals to this Court. Secretary’s Br. at 6-8. Alternatively, the Secretary contends that the
August 2012 examination was adequate for rating purposes and, therefore, the Board did not err
by relying on it. Id. at 8-11.
As an initial matter, the Court is not persuaded by the Secretary’s argument that the
appellant should be precluded from challenging the adequacy of the August 2012 examination
where he did not previously raise the issue. See Secretary’s Br. at 6-8; Maggitt v. West, 202 F.3d
1370, 1378 (Fed. Cir. 2000) (the determination of whether to entertain an argument raised for the
first time at the Court is a “matter of discretion”). Although the appellant did not specifically
present his current argument as to the adequacy of the August 2012 examination in prior appeals,
the previous JMRs were procured at the pre-briefing stage and involved a concession of procedural
error regarding the Board’s statement of reasons or bases. See Reply Br. at 1-3; R. at 72-77, 135-
40. In neither JMR did the parties aver the adequacy of the August 2012 examination or limit
development on remand to reasons or bases; rather, the parties instructed the Board to conduct
additional review of the record. R. at 75, 138. As the appellant’s current argument falls within the
scope and posture of the prior JMRs, the Court need not consider or invoke the exhaustion of
remedies doctrine in this case. Cf. Massie v. Shinseki, 25 Vet.App. 123, 126-28 (2011) (noting
that the Court “is uniquely positioned to balance and decide the considerations regarding
exhaustion in a particular case” (quoting Maggitt, 202 F.3d at 1378)).
However, as discussed below, although the appellant is not precluded from challenging the
adequacy of the August 2012 examination, the Court does not find his underlying argument
persuasive. See Appellant’s Br. at 6-10; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)
(“An appellant bears the burden of persuasion on appeals to this Court.”), aff’d per curiam,
232 F.3d 908 (Fed. Cir. 2000) (table). The appellant contends that the August 2012 examination
4
report is inadequate because the VA examiner failed to specify the point at which pain and
functional loss were present during range-of-motion testing, in violation of Mitchell v. Shinseki,
25 Vet.App. 32, 44 (2011). Appellant’s Br. at 7.
The Secretary’s duty to assist includes, in appropriate cases, the duty to conduct a thorough
and contemporaneous medical examination. 38 U.S.C. § 5103A(d)(1); see Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007). An examination is adequate “where it is based upon consideration
of the veteran’s prior medical history and examinations and also describes the disability, if any, in
sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed
one.'” Stefl, 21 Vet.App. at 123 (quoting Ardison v. Brown, 6 Vet.App. 405, 407-08 (1994)).
Whether a medical examination report is adequate is generally a finding of fact that the Court
reviews under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Nolen v. Gober,
14 Vet.App. 183, 184 (2000). “A factual finding ‘is “clearly erroneous” when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
When a claim involves a musculoskeletal disability, an adequate examination of that
disability must indicate that the examiner considered the effects of pain on the veteran’s range of
motion. DeLuca v. Brown, 8 Vet.App. 202, 206 (1995); see 38 C.F.R. § 4.40 (2017) (requiring an
evaluation of “functional loss . . . due to pain supported by adequate pathology and evidenced by
the visible behavior of the claimant undertaking the motion”). Although pain itself does not rise
to the level of functional loss, when evaluating disabilities of the musculoskeletal system under
DCs based on limitation of motion, the medical examiner must consider pain that results in
functional loss. Mitchell, 25 Vet.App. at 43; see DeLuca, 8 Vet.App. at 206. A functional loss
results when the ability “to perform the normal working movements of the body with normal
excursion, strength, speed, coordination[, or] endurance” is inhibited. 38 C.F.R. § 4.40.
In this case, a review of the August 2012 examination report reflects that the VA examiner
measured right knee extension ending at 5 degrees and found no additional limitation of motion
after repetitive-use testing. R. at 213-15. In a comment following the initial range-of-motion
measurements, the examiner observed that “[k]nee pain is constant bilaterally, and [the appellant]
has objective evidence of painful motion throughout his arc of motion.” R. at 214. In the
“[m]edical history” section of the report, the examiner also detailed the appellant’s description of
5
additional symptomatology and physicial limitations experienced since his last examination. R. at
212. In the Board’s decision, it determined that the August 2012 examination report was adequate,
as it was based on the appellant’s medical history and described the disability in sufficient detail
so that the Board’s decision was a fully informed one. R. at 7 (citing Stefl, 21 Vet.App. at 123).
In its analysis, the Board acknowledged the August 2012 examiner’s finding of functional loss due
to pain on movement and the Board considered the objective evidence of painful motion when it
weighed the evidence. R. at 16, 18.
The August 2012 examiner explicitly found that the appellant demonstrated objective
evidence of painful motion throughout his arc of motion and that he was nonetheless able to
perform repetitive testing without additional loss of motion. R. at 213-15. Although the appellant
now attempts to inject ambiguity into these findings, his argument ultimately amounts to a
disagreement with how the Board weighed the evidence of record, and the Court can discern no
error in this regard. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the “duty
[of] the Board to analyze the credibility and probative value of evidence”); Owens v. Brown,
7 Vet.App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of
record). In short, the appellant has failed to satisfy his burden of demonstrating that the Board
erred in relying on the August 2012 examination report or that the Board otherwise erred in its
rating analysis. See Hilkert, 12 Vet.App. at 151. To the extent that the appellant repackages his
argument as a challenge to the Board’s reasons or bases concerning the adequacy of the August
2012 examination, the Court has already considered and rejected that argument and will not
address it further.
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s March 8,
2016, decision is AFFIRMED.
DATED: July 18, 2017
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)

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