Veteranclaims’s Blog

December 30, 2017

Single Judge Application; Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016); 38 C.F.R. § 4.59 (2017);

Excerpt from decision below:

“The Court next concludes that the Board erred in relying on an inadequate March 2010 examination to deny the appellant a rating in excess of 10% for his left knee limitation of motion before April 21, 2015. See Hicks v. Brown, 8 Vet.App. 417, 421 (1995) (finding that Board reliance on inadequate examinations frustrates judicial review). Specifically, the examiner failed to test the appellant’s knee “on both active and passive motion, [and] in weight-bearing and non-weight-bearing” positions, and to explain why such testing could not or should not be done, as required by regulation. 38 C.F.R. § 4.59 (2017) (final sentence); see Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016) (“[T]o be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.”). This error is especially prejudicial to the appellant given his contention that he suffered pain during weight-bearing activities. See R. at 2040-45.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-0420
JAMES E. GRAVES, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: The appellant, James E. Graves, appeals through counsel a December 4, 2015, Board of Veterans’ Appeals (Board) decision that denied him (1) a disability rating in excess of 10% for a left knee condition before April 21, 2015, and in excess of 20% from that date forward; (2) a compensable rating for left knee instability before April 21, 2015, and in excess of 10% from that day forward; and (3) a rating in excess of 30% for a left ankle condition. Record (R.) at 2-18. The appellant argues that the Board failed to (1) ensure that the duty to assist was satisfied; (2) provide an adequate statement of reasons and bases for denying the appellant an increased rating for his left knee and ankle conditions for all periods on appeal; (3) consider whether the appellant was entitled to special monthly compensation for his ankle disability; (4) consider the appellant’s eligibility for compensation under Diagnostic Codes (DC) 5310 and 5258; and (5) provide an adequate statement of reasons and bases for denying extraschedular referral. Appellant’s Brief (App. Br.) at 11-27. The Secretary concedes that remand of the appellant’s increased-rating claim for left knee instability for the period before April 21, 2015, is warranted. Secretary’s Brief (Sec. Br.) at 18.
On July 31, 2017, the Court affirmed the denial of a compensable rating for the appellant’s
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left knee instability for the period before April 21, 2015, vacated the remainder of the Board’s December 4, 2015, decision, and remanded those matters for readjudication. See Graves v. Shulkin, No. 16-0420, 2017 WL 3220236, at *1 (U.S. Vet. App. July 31, 2017) (mem. dec.). In the decision, the Court found no error in the Board denying a compensable rating for left knee instability for the period before April 21, 2015, citing the Board’s reliance on a March 2010 examiner’s finding of no instability in the appellant’s left knee. 2017 WL 3220236, at *3. On August 22, 2017, the Court entered judgment in this matter. On October 25, 2017, mandate issued. On November 17, 2017, the appellant filed a motion for reconsideration stating that the Court had overlooked a Secretary’s concession. See Appellant’s Nov. 17, 2017, Motion for Reconsideration at 2-3. Because the Court agrees that reconsideration of the July 31, 2017, memorandum decision is warranted, the Court will (1) revoke judgement; (2) grant the appellant’s November 17, 2017, motion for reconsideration; (3) withdraw the Court’s July 31, 2017, memorandum decision, and; (4) issue this decision in its stead. For the following reasons, the Court will vacate the Board’s December 2015 decision and remand the matters for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations, is consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional promises to veterans has been of great concern. “By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise
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terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in the U.S. Army from February 1987 to September 1988 as a bridge crewman. R. at 1360 (DD Form 214). The appellant injured his left ankle and knee during service. R. at 1846.
In June 1989, the appellant filed for benefits based on service connection for a left ankle disability. R. at 1682. The appellant was granted service connection and a 20% disability rating for his left ankle. See R. at 1531-34, 1536-42. The appellant’s rating was increased to 30% in December 1997. R. at 1484-88.
In June 2006, the appellant filed for benefits based on service connection for a left knee disability secondary to his service-connected left ankle disability. R. at 1160. The appellant was granted service connection for his left knee disability in March 2007, with a temporary 10% rating from June 9, 2006, to June 23, 2006, a total disability rating from June 23, 2006 through August 31, 2006, and a non-compensable rating as of September 1, 2006. R. at 1035-36.
In August 2008, the appellant requested an increased rating for his left knee disability and in June 2009 was granted a 10% disability rating. R. at 877-78. Additionally, the appellant was awarded a separate 10% disability rating for left knee instability. R. at 877.
In November 2009, the appellant filed for an increased rating for his left knee and ankle disabilities. R. at 835. In conjunction with this claim, the appellant underwent a VA examination in March 2010 where an examiner determined that the appellant had no left knee instability. R. at 2043. The examiner also noted the appellant’s contentions regarding his functional impairment during weight-bearing activities, yet no weight-bearing range-of-motion testing was conducted. R. at 2040. In June 2010, VA denied the appellant’s increased-rating claim and reduced the appellant’s left knee instability evaluation to noncompensable. R. at 686-700. The appellant appealed this decision. R. at 676. In November 2013, the appellant was diagnosed with a meniscus tear. R. at 287.
In April 2015, a VA examiner completed disability questionnaires (DBQs) regarding the appellant’s service-connected knee and ankle conditions. See R. at 1831-56. Regarding the appellant’s left knee disability, the examiner noted that (1) the appellant had pain that caused
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functional loss in the form of fatigue, weakness, and lack of endurance; (2) the examination supported the appellant’s statements regarding his functional loss during flareups of his left knee; (3) the appellant had instability; and (4) the appellant had a meniscus injury that resulted in frequent episodes of joint locking, joint pain, and joint effusion. R. at 1833-39. The examiner also noted that the appellant had functional loss with repeated movements and as a result of flareups, in the form of fatigue, pain, weakness, and lack of endurance of his left ankle. R. at 1849.
In December 2015, the Board denied the appellant (1) a rating in excess of 10% before April 21, 2015, and in excess of 20% from that date forward for his left knee disability; (2) a compensable rating for the period before to April 21, 2015, and in excess of 10% from that date forward for left knee instability; and (3) a rating in excess of 30% for his left ankle disability. R. at 2-19. The Board noted its reliance on the March 2010 and April 2015 examinations to render its decision. R. at 9-13,15-16. Furthermore, the Board cited the March 2010 examination results regarding knee stability and the April 2015 examination regarding “slight” knee instability as the basis for its knee instability grants. R. at 10, 12. The Board also found that there was “no basis for referral for consideration of an extraschedular rating in this case.” R. at 18. This appeal ensued.
The Court agrees with the Secretary that the Board erred in denying the appellant a compensable rating for left knee instability for the period before April 21, 2015, because the Board failed to address the appellant’s statements of left knee instability during the March 2010 examination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to describe observable symptoms); Sec. Br. at 18-19. Remand is required for the Board to address these statements. See Jandreau, supra.
Additionally, the Court concludes that the Board failed to provide an adequate statement of reasons and bases for not granting the appellant an increased rating for left knee instability, for the period beginning April 21, 2015. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (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).
The April 2015 examiner noted that the appellant had a history of knee instability, and then determined that the appellant currently had “2+” instability in the medial and lateral planes. R. at 378. The Board appears to have misread the examiner’s opinion when it found the appellant’s knee instability to be “slight.” R. at 12. The examiner’s “slight” comment referred to the appellant’s
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history, although his current instability seems to align with a moderate rating given the options of the DBQ. See R. at 378. Remand is required for the Board to provide an adequate statement of reasons and bases regarding whether the appellant is entitled to a rating in excess of 10%, beginning on April 21, 2015, for left knee instability.
The Court next concludes that the Board erred in relying on an inadequate March 2010 examination to deny the appellant a rating in excess of 10% for his left knee limitation of motion before April 21, 2015. See Hicks v. Brown, 8 Vet.App. 417, 421 (1995) (finding that Board reliance on inadequate examinations frustrates judicial review). Specifically, the examiner failed to test the appellant’s knee “on both active and passive motion, [and] in weight-bearing and non-weight-bearing” positions, and to explain why such testing could not or should not be done, as required by regulation. 38 C.F.R. § 4.59 (2017) (final sentence); see Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016) (“[T]o be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.”). This error is especially prejudicial to the appellant given his contention that he suffered pain during weight-bearing activities. See R. at 2040-45. Remand is required for the Board to provide an adequate statement of reasons and bases for its reliance on this examination. See 38 U.S.C. § 5103(a); see also Correia, supra.
The Court also concludes that the Board failed to provide an adequate statement of reasons and bases for denying the appellant a rating in excess of 20% for his left knee disability for the period beginning April 21, 2015. See Gilbert, supra. Specifically, the Board merely listed evidence of functional loss but failed to analyze this evidence. In April 2015, the appellant underwent a VA examination that revealed the appellant experienced functional loss due to pain via lack of endurance, yet the Board did not address whether this evidence entitled him to a higher rating. R. at 1836, 12. See Abernathy v. Principi, 3 Vet.App. 461, 465 (1992) (noting that a mere list of the relevant evidence is not adequate to fulfill the Board’s obligation to provide a statement of reasons or bases for its decisions). Remand is required for the Board to properly address this evidence. See Abernathy, supra.
Further, the Court concludes that the Board provided an inadequate statement of reasons and bases for not awarding the appellant a separate disability rating under DC 5258. See Gilbert, supra. In November 2013, the appellant was diagnosed with a meniscus tear. R. at 287. In April 2015, a VA examiner noted that the appellant had a meniscus condition that resulted in frequent
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episodes of joint locking, pain, and effusion. R. at 1839. Given that DC 5258 grants compensation in the event of “[c]artilage, semilunar, dislocated with frequent episodes of ‘locking,’ pain, and effusion into the joint,” it is unclear why the Board did not assign the appellant a separate rating under DC 5258. See 38 C.F.R. § 4.73 (2017). Remand is required for the Board address whether the appellant is entitled to a separate rating under DC 5258.
Lastly, the Court agrees with the appellant and concludes that the Board provided an inadequate statement of reasons and basis for not awarding a separate rating under DC 5310 for the appellant’s ankle disability. See 38 C.F.R. § 4.73; see also Gilbert, supra. The appellant is compensated solely for the limitation of motion of his ankle under DC 5270. Given that the record indicates calcification of a one-third of the interosseous ligament along the fibular component, increased fluid surrounding the tendon sheaths of the peroneus brevis and longus, flexor digitorum, flexor halluces longus tendons, and removal of the medial extensor digitorum brevis muscle belly and intramural cysts of the ankle, R. at 742,745,1331-33, 1170-72, 1175, 1194, it is unclear why the Board failed to discuss whether the appellant was entitled to a separate rating under DC 5310. Remand is required for the Board to address whether the appellant is entitled to separate rating under DC 5310. See Gilbert, supra.
Because the Court is remanding the matter, it will not address the appellant’s remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). Furthermore, although the Court recognizes the Secretary’s concession, it is premature to address arguments pertaining to extraschedular consideration because the Court is remanding the ankle and knee matters on a scheduler basis for all periods on appeal. On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The remanded matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. at 410 n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one . . . .” (internal quotation marks omitted)).
For the foregoing reasons, and on review of the record, judgement in this matter is revoked, the appellant’s November 17, 2017, motion for reconsideration is granted, the Court’s July 31, 2017, memorandum decision is WITHDRAWN, the December 4, 2015, Board decision is VACATED, and the matters are REMANDED for readjudication.
DATED: December 28, 2017
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Copies to:
Stacy A. Tromble, Esq.
VA General Counsel (027)

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