Veteranclaims’s Blog

January 18, 2018

Single Judge Application; Lyles v. Shulkin, U.S. Vet. App. No. 16-0994 (Nov. 27, 2017); evaluation under Diagnostic Code 5258 does not preclude a separate evaluation under Diagnostic Code 5261;

Excerpt from decision below:

“Recently, the Court expressly held that an evaluation under Diagnostic Code 5258 does not preclude a separate evaluation under Diagnostic Code 5261. Lyles v. Shulkin, __ Vet.App. __, __, U.S. Vet. App. No. 16-0994, slip op. at 6, 2017 WL 5891831, at *4-6 (Nov. 27, 2017). Diagnostic Code 5261 (limitation of extension of the leg) is the corollary of Diagnostic Code 5260 (limitation of flexion of the leg),9 and the Court therefore concludes that Lyles is applicable in this case.
Here, the Board simply determined that the evidence did not support the assignment of a disability rating higher than 20%—the rating the Board assigned under Diagnostic Code 5258—under any other diagnostic code, including Diagnostic Code 5260. R. at 24. The Board did not consider whether the appellant may be entitled to a separate disability rating under Diagnostic Code 5260. See R. at 21-24. Given the Court’s recent holding in Lyles, this was error.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2334
ALISON K. WILLIAMS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MEREDITH, Judge: The appellant, Alison K. Williams, through counsel appeals an
April 12, 2016, Board of Veterans’ Appeals (Board) decision that denied entitlement to initial disability ratings in excess of 10% each for a right shoulder disability, right wrist tendonitis, and right hip bursitis; granted entitlement to higher initial disability ratings of 20% for right knee chondromalacia, and 10% for costochondritis1 and radiation fibrosis2 of the right breast; and dismissed the matter of entitlement to an initial compensable disability rating for plantar fasciitis.
Record (R.) at 1-35. The assignment of a 20% disability rating for chondromalacia of the right knee and of a 10% disability rating for costochondritis and radiation fibrosis are favorable findings that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . . decisions which are adverse to a claimant.”). In her opening brief, the appellant explicitly abandons any appeal of the Board’s dismissal of the matter
of entitlement to an initial compensable disability rating for plantar fasciitis. See Appellant’s Brief
1 Costochondritis is the “inflammation of the cartilaginous junction between a rib or ribs and the sternum.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 423 (32d ed. 2012) [hereinafter DORLAND’S].
2 Fibrosis is “the formation of fibrous tissue.” DORLAND’S at 704.
2

(Br.) at 1 n.1. Therefore, the Court will dismiss the appeal as to the abandoned issue. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). Further, the Board remanded the matter of
entitlement to an initial compensable disability rating for a scar with thickening of the skin, status
post-lumpectomy of the right breast, and that matter is not before the Court. See Breeden v.
Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (a Board remand “does not represent a
final decision over which this Court has jurisdiction”); Hampton v. Gober, 10 Vet.App. 481, 483
(1997) (claims remanded by the Board may not be reviewed by the Court).
This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will dismiss the
appellant’s appeal of a claim for benefits for a labral tear of the right hip and will vacate the
remaining portions of the Board decision on appeal and remand the vacated matters for further
proceedings consistent with this decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from May 1983 to March 2007. R. at 563.
A. Relevant Medical History
1. Right Shoulder
The appellant was diagnosed with right shoulder tendonitis in service. R. at 4148. She was also diagnosed with right trapezius, latissimus dorsi, and pectoralis muscle strains. R. at 914-15.
In the body of a March 2007 VA contract examination report, under the heading “Specific
history for: Labral tear[,] right shoulder,” the examiner identified and discussed a labral tear of the
right hip. R. at 4137. At the end of the opinion, under the heading “Diagnosis,” the examiner
wrote: “For the claimant’s claimed condition of LABRAL TEAR RIGHT SHOULDER, the
diagnosis is as follows: tendonitis both shoulders. The subjective factors are pain. The objective
factors are pain with motion at the shoulders.” R. at 4148.
In a September 2015 VA examination, the examiner stated that she was evaluating “right
shoulder tendonitis with right trapezius, pectoralis, and latissimus dorsi strain.” R. at 495. The
examiner noted the appellant’s report of muscle spasms that last 2 to 3 days and flareups consisting
3
of increased pain with any repetitive action, physical activity, or weight-bearing. R. at 496. The
appellant also reported functional loss in the nature of limited movement, particularly with
reaching, and an inability to perform physical exercises. R. at 497. Range of motion testing
revealed right shoulder flexion to 150 degrees, abduction to 150 degrees, external rotation to 90
degrees, and internal rotation to 70 degrees, with pain during testing. R. at 497-98. The examiner
indicated that the appellant’s abnormal range of motion contributed to functional loss by making it
difficult for her to reach overhead or carry objects. Id. After repetitive-use testing, the examiner
documented additional loss of function or range of motion in reduced external and internal rotation
caused by pain and fatigue. R. at 498. Muscle strength tests were normal, and there was no
atrophy. R. at 500. The examiner noted the appellant’s report that her right shoulder condition
affects her ability to function, specifically that it makes it “difficult to carry books or move
furniture[,] . . . sweep, rake[,] or work in the yard[, and] reach[] for objects in cabinets.” R. at 505.
The appellant also stated that her condition makes it difficult “to do any type of repetitive motion.”
Id. The examiner stated that she could not estimate functional loss due to flareups or after
repetitive use over time because the appellant had not been examined after repetitive use or during
a flareup. R. at 499-500.
2. Right Wrist
In the March 2007 VA contract examination, the examiner noted that the appellant had
been diagnosed with DeQuervain’s tendonitis 3 of the right wrist and recorded symptoms of
swelling, heat, and pain. R. at 4137. The appellant reported flareups of the condition 4 times per
month, lasting 3 days each time, in the nature of localized, burning, sharp, hot pain. Id. The
appellant stated that, at its worst, the pain was an 8 on a scale of 1 to 10 and prevented her from
using her hand. R. at 4137-38. The examiner described the functional impairment of the
appellant’s condition as an “inability to use a computer or do other repetitive tasks during a flareup.”
R. at 4138.
A May 2008 private treatment record reveals that the appellant complained of a recent
exacerbation of her right wrist condition, specifically “burning pain on the top of her right wrist
radiating down arm to elbow and down thumb.” R. at 3391. The appellant reported that her hand
3 This condition is alternately referred to in the appellant’s medical records as DeQuervain’s tendonitis and
DeQuervain’s tenosynovitis. DeQuervain was a Swiss physician. DORLAND’S at 493. Tendonitis is the “inflammation
of tendons and of tendon-muscle attachments.” Id. at 1881. Tenosynovitis is “an inflammation of a tendon sheath.”
Id. at 1882.
4
was weak because of the pain and that she had decreased use of her hand. Id. The examiner noted
tenderness to palpation and decreased range of motion in the wrist and fingers. Id.
At a February 2009 VA hand, thumb, and fingers examination, the appellant complained
of stiffness in her hands and fingers every morning. R. at 3895. Physical examination revealed
normal range of motion in the hand and all fingers, although the appellant complained of pain and
was resistant to “grip, grasp[,] and pincher strength testing.” R. at 3896.
In a June 2009 letter to VA, the appellant’s private radiation oncologist reported that the
appellant had been diagnosed with DeQuervain’s tendonitis in October 2003, likely as a result of
hand position during daily radiation treatment that the appellant had received for ductal carcinoma
of the right breast. R. at 3868. The oncologist stated that the condition was “intermittent and
recurring[,] with flare-ups causing intense pain and burning.” Id.
In a June 2009 statement to VA, the appellant reported that her right wrist condition “recurs
with continual use of hand and thumb (e.g., keyboard computer usage, using hand to carry items,
and hand use for repetitive activities). When pain and burning sensation occur, range of motion is
affected. Thumb and hand splint/brace is worn to immobilize the area to allow healing.” R. at
3862.
Medical records and personal statements from July, August, and September 2009 all
contain continued reports of pain, limited range of motion in the thumb and fingers, and swelling.
R. at 3730-31, 3732-33, 3773-75, 3776-78, 3826.
A January 2010 private medical record contains the appellant’s complaints of wrist stiffness
and elbow pain, exacerbated by wrist extension and rotation. R. at 3589. The appellant also
reported that she had recently developed numbness and tingling in her right fingertips. Id.
In a January 2010 statement to VA, the appellant wrote that, since September 16, 2009, she
had experienced 3 “painful episodes,” each lasting 3 to 6 days. R. at 3718. She stated that grasping,
gripping, and twisting exacerbated her condition and that “[i]nflammation of the tendon [and]
sheath has been painful w[ith] joint mobility significantly impaired.” Id. She stated that she had
“[e]xtreme difficulty” performing daily activities, including using a computer keyboard, cooking,
eating, cleaning, lifting, and carrying. Id. She concluded: “There is forearm supinator pain/stress
possibly related to this.” Id.
An April 2010 medical record prepared by a private hand surgeon noted the appellant’s
diagnosis of DeQuervain’s tenosynovitis and stated that the radiation the appellant underwent to
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treat her breast cancer “probably irritated the radial nerve” at the radial tunnel area. R. at 3598.
The physician stated that the burning sensation and elbow pain the appellant experiences are
related to the irritation of the radial nerve. R. at 3599.
A January 2011 private occupational therapy note records the appellant’s reports of
“difficulty with daily activities inside and outside the home, to include daily grooming and hygiene
activities.” R. at 3401. Testing revealed paresthesias in the right hand and elbow. Id.
In a June 2011 statement, the appellant wrote that her condition caused “excruciating
burning pain, weakness, and limitation of activities.” R. at 3389. She reported that her condition
was “severe and persists, affecting daily activities.” Id.
The appellant’s right wrist disability was evaluated in the September 2015 VA examination.
The examiner noted that the appellant complained of burning, radiating pain on the “thumb side”
of her right wrist. R. at 460. The appellant reported “constant flare-ups when typing, using
[computer] mouse, performing yard work, carrying heav[y] objects[,] and performing housework.”
Id. She also reported difficulty working out “due to repetitive pulling motion.” Id. She stated that
she experiences functional loss or functional impairment in that, with increased pain, she is unable
to use her right hand. R. at 461. Range of motion testing of the right wrist was “abnormal,” and
the motion was painful in all four types of motion measured. R. at 461-62. The examiner stated
that she was unable to opine as to functional loss after repetitive use over time or during flareups
because the appellant was not examined after repetitive use or during a flareup. R. at 463-64. The
examiner stated that the appellant had “additional contributing factors of disability,” specifically,
less movement than normal and weakened movement. R. at 464. Finally, the examiner stated that
the appellant’s right wrist disability affected her ability to carry books and other objects, as well as
to use a computer mouse and keyboard. R. at 467.
3. Right Hip
Service medical records reveal that the appellant tore the labrum of her right hip and
developed bursitis of the right hip in service. R. at 629 (September 2005 medical report diagnosing
anterior superior labral tear), R. at 1514 (December 2006 medical record diagnosing hip bursitis).
The March 2007 VA contract examiner noted the labral tear of the right hip4 and found that
it caused weakness, catching, locking, and lack of endurance. R. at 4137. The appellant stated
4 As discussed in Part I.A.1 above, the examiner discussed the labral tear of the appellant’s right hip under
the heading “Specific History for: Labral Tear Right Shoulder,” R. at 4137, which may account for the confusion
6
that she experienced constant, localized, aching, oppressing, sharp, pain in the hip, which was
“wobbly at times.” Id.
At the September 2015 VA examination, the examiner diagnosed both bilateral hip bursitis
and a right labral tear, but stated that the labral tear was “a new and separate condition” from the
service-connected bursitis. R. at 479. The examiner explained that “nothing in the literature . . .
supports that a labral tear can be caused by [] bursitis.” Id. The examiner noted functional loss or
impairment in the nature of limited range of motion, R. at 471, and an “additional contributing
factor” of less movement than normal, R. at 475. Range of motion testing was abnormal, R. at
472, and the examiner noted that pain caused functional loss, R. at 473. The examiner stated that
she could not estimate functional loss during flareups or after repetitive use over time because the
appellant was not examined during a flareup or after repetitive use. R. at 474-75.
4. Right Knee
The appellant’s service medical records reveal that she underwent two meniscectomies in
service and was diagnosed with chondromalacia5 and arthritis of the right knee. R. at 681, 1062-
68, 1450-51, 1993, 2122-23.
The March 2007 VA contract examiner noted the appellant’s diagnosis of bursitis in the
right knee that caused weakness, swelling, heat, and numbness, as well as localized burning,
aching, sharp pain above the kneecap. R. at 4137. The appellant reported flareups 3 times per
month, each lasting 2 days manifesting in pain of an 8 on a scale of 1 to 10. Id. The examiner
stated that the appellant’s functional limitations from bursitis were pain on walking, standing, and
dancing. Id.
The March 2007 VA contract examiner also identified a diagnosis of right knee
degenerative joint disease (DJD) with meniscal tear. R. at 4138. The appellant reported symptoms
of weakness, stiffness, swelling, giving way, lack of endurance, and locking. Id. The appellant
stated that she had constant, localized pain that is aching, oppressing, sharp, licking, and throbbing
in nature. Id. The examiner noted the appellant’s reports that, although the pain was “there all the
time,” activities such as climbing stairs, walking, or standing make it worse. Id. The appellant
reported one incapacitating episode once per year lasting 4 days. Id. The examiner identified
regarding the appellant’s claim for benefits by VA, as discussed further in Part I.B below.
5 Chondromalacia is the “softening of the articular cartilage, most frequently in the patella.” DORLAND’S at
352.
7
functional impairment as pain on standing, walking, and going up and down stairs. Id. Physical
examination revealed chronic swelling, crepitus, and pain on motion. R. at 4144. Range of motion
testing was normal, although the examiner noted that the appellant’s range of motion was
additionally limited by pain and that pain caused the major functional impact. Id.
In January 2011, a VA contract examiner recorded the appellant’s symptoms of weakness,
stiffness, swelling, heat, giving way, lack of endurance, locking, fatigability, tenderness, and pain,
as well as the appellant’s reports of flareups as often as 3 times per week lasting for 2 days. R. at
3509. The appellant stated that her flareups were precipitated by physical activity and by
prolonged standing or sitting, and caused severe, sharp, burning pain that was a 10 on a scale of 1
to 10. Id. She reported that the flareups resulted in functional impairment of mobility and an
inability to straighten the knee. Id. The examiner stated that the appellant was limited in that she
could not tolerate prolonged standing or walking, could not run, and had difficulty with weightbearing
activities, climbing stairs, and driving. Id. Range of motion testing was normal, including
after repetitive-use testing, and stability tests were normal. R. at 3510. The examiner diagnosed
chondromalacia of the right knee and stated that the effect of the condition on the appellant’s usual
occupation was “no squatting, climbing[, or] heavy lifting,” and that the effect on the appellant’s daily activity was “moderate household chores.” Id.
In April 2011, the appellant complained to her treating physician of right knee pain,
swelling, and locking after walking a long distance. R. at 3381. The physician noted effusion, patellar swelling, crepitus, tenderness to palpation, and full range of motion with pain. R. at 3382.
The physician diagnosed chronic internal derangement of the knee. Id.
A May 2011 VA magnetic resonance image (MRI) revealed a complex tear of the medial meniscus. R. at 3383. That same month, the appellant’s treating orthopedist noted pain on palpation along the medial joint, a locking sensation when trying to stretch the medial compartment, and weak quad mechanisms. R. at 3387. VA x-rays revealed osteoarthritis of the right knee. R. at 420.
A June 2015 medical record contains the appellant’s complaints of pain, intermittent swelling, and stiffness in her right knee, which she stated had been aggravated several weeks
earlier. R. at 415. Physical examination revealed mild edema, small effusion on palpation, flexion
to 120 degrees, minimal crepitus, tenderness, and pain. R. at 416. The examiner noted no laxity in the joint. Id.
8
The September 2015 VA examiner noted the appellant’s reports of constant pain that
increased with prolonged activity and flareups. R. at 483-84. The appellant also reported
functional loss as limited range of motion. R. at 484. Physical examination revealed flexion to
115 degrees with pain. R. at 484-85. The examiner found objective evidence of crepitus, R. at
485, as well as “additional contributing factors” of less movement than normal and instability of
station, R. at 487. Strength testing was normal. Id. The examiner stated that she could not estimate
functional loss on flareups or after repetitive use over time because the appellant was not examined
after repetitive use or during a flareup. R. at 486-87. Finally, the examiner stated that the
appellant’s right knee condition caused functional impact in the nature of increased pain with
prolonged standing, walking, and sitting. R. at 493.
5. Costochondritis with Radiation Fibrosis
The appellant was diagnosed with costochondritis in service. R. at 1132. In the March 2007 VA contract examination, the examiner noted that the appellant’s costochondritis flares up 4 times per month, each lasting 2 days and causing pain of 10 on a scale of 1 to 10. R. at 4136. The appellant described the pain as crushing, squeezing, aching, oppressing, and sharp in nature, elicited by physical activity. Id.
In his June 2009 letter to VA, the appellant’s private radiation oncologist reported that,
since completing radiation treatment in September 2003, the appellant had experienced “persistent
chronic” costochondritis manifested “by tenderness to palpation at the rib-cartilage junction[] and
discomfort and cramping with exercise, particularly using weights.” R. at 3868. The oncologist
also wrote that the appellant had developed radiation fibrosis that caused muscle cramping and
“limited range of motion of the tissues inferior to the right breast when performing activities with
the right arm raised above the head or extended out laterally.” R. at 3870. In addition, the
oncologist wrote: “[T]he right latissimus dorsi exhibits evidence of fibrosis with continued
tightness and pain, as documented in treatment notes from her physical therapist for this condition.
Secondary to this fibrosis[,] muscles substance and tone are diminished in this region.” Id.
In a June 2009 VA contract examination, the appellant reported “painful cramping” in her
chest and “muscle spasms under [her] right breast with arms raised above head or extended
outward.” R. at 3849. The examiner listed the residuals of the appellant’s breast cancer as
“[s]cars[;] muscle strain of the right upper trapezius, latissimus dorsi[,] and pec[toralis] major[;]
DeQuervain’s tenosynovitis.” R. at 3851.
9
In her June 2009 statement to VA, the appellant reported experiencing cramps and muscle
spasms under her right breast “when performing activities with arms raised above head or extended
out.” R. at 3862. She further reported that she had “experienced recurring and painful muscle
spasms of right latissimus, right trapezius, and right pectoralis muscles.” Id.
The September 2015 VA examination included evaluation of the appellant’s
costochondritis with radiation fibrosis. R. at 520. The examiner recorded the appellant’s history
of this condition, stating that, in 2003, the appellant “started having muscle pain and spasms in the
right shoulder and rib cage region following breast cancer radiation therapy.” R. at 521. The
examiner determined that the appellant’s condition affected Muscle Group I, “[e]xtrinsic muscles
of shoulder girdle: trapezius, levator scapulae, [and] serratus magnus,” which affected “[u]pward
rotation of scapula [and] elevation of arm above shoulder level,” as well as Muscle Group II,
“[m]uscles of shoulder girdle: pectoralis major, latissimus dorsi and teres major, pectoralis minor,
[and] rhomboid,” which affected “[d]epression of arm from vertical overhead to hanging at side,
downward rotation of scapula, [and] forward and backward swing of arm.” Id.
B. Procedural History
In December 2006, the appellant filed claims for benefits for numerous disabilities,
including, as relevant here, a right “labrum tear.” R. at 4277. In August 2007, a VA regional office
(RO) granted benefits for, among other conditions, “right shoulder tendonitis (claimed as labral
tear right shoulder)” (10%), bilateral hip bursitis (10%), chondromalacia of the right knee (10%),
right wrist tendonitis (noncompensable), and costochondritis and radiation fibrosis of the right
chest (noncompensable), all effective April 1, 2007, the day after the appellant’s discharge from
service. R. at 4072-73. In a December 2007 Notice of Disagreement (NOD), the appellant wrote
the following with respect to the grant of benefits for right shoulder tendonitis:
Request correction only of decision narrative.
Original claim submitted November 2006, VA Form 21-526, was incomplete.
Reference was made to labral tear right[.] I did not complete that item. It is labral
tear right hip. MRI, July 2005, diagnosed an extensive tear of the acetabular
labrum. I do not have a labral tear in my right shoulder. The tendonitis
condition/claim is accurate, as diagnosed by the VA[] doctor.
R. at 4049. With respect to the grant of benefits for right hip bursitis, the appellant wrote:
Request reconsideration of evaluation of 10[%] as follows.
10
In addition to bursitis, right hip has a labral tear in the ball-joint area. I incompletely
identified location of tear when VA Form 21-526 was submitted. However, correct
information was given to VA[-]appointed . . . doctor and evidence is in service
medical records. July 2005 MRI identified an extensive tear of the acetabular
labrum.
R. at 4050. The appellant also disagreed with the disability ratings assigned for her right knee
disability, right wrist tendonitis, and costochondritis and radiation fibrosis. See R. at 4049-53.
In November 2009, the RO granted benefits for a right trapezius strain and for right
pectoralis major and latissimus dorsi strain and assigned noncompensable disability ratings for
those conditions. R. at 3738-50.
In a July 2010 Statement of the Case, the RO continued (1) the 10% disability rating for
right shoulder tendonitis, which the RO again stated had been “claimed as labral tear right
shoulder,” R. at 3656; (2) the 10% disability rating for chondromalacia of the right knee; (3) the
10% disability rating for right hip bursitis; and (4) the noncompensable disability rating for
costochondritis and radiation fibrosis of the right chest. R. at 3631-63. The RO also increased the
initial disability rating assigned for right wrist tendonitis to 10%, effective April 1, 2007. Id.
In an August 2010 decision, a VA decision review officer found clear and unmistakable
error in the RO’s November 2009 decision that granted separate disability ratings for a right
trapezius strain and a right pectoralis major and latissimus dorsi strain because that decision
“clearly violate[d] . . . 38 C.F.R. § 4.14,” which prohibits the evaluation of the same disability or
same disability manifestations under separate diagnostic codes. R. at 3619-20. The decision
review officer explained:
[The appellant] w[as] already service connected for right shoulder tendonitis[] and
may not be considered again as part of [her] claim for lymphedema . . . and radiation fibrosis as residuals of radiation therapy. . . . [T]he error is considered harmless since it would not have changed the outcome of the decision at the time. . . . Since [a] recent VA examination identified muscle strain of [the] right upper trapezius, latissimus dorsi, and pectoralis major (also claimed as lymphedema due to lymph node . . . dissection and radiation fibrosis), we will rate the right shoulder muscle strain together with right shoulder tend[o]nitis as a single evaluation because similar functions are affected. R. at 3620.
In her August 2010 Substantive Appeal to the Board, the appellant stated that she agreed
with the 10% disability rating assigned for her right shoulder tendonitis but again advised VA that
11
“no labral tear exists in [the] right shoulder.” R. at 3606. She also again stated that the 10%
disability rating assigned for bursitis of the right hip “does not accurately address” the condition
of the right hip. R. at 3608. She explained that she had submitted evidence that she had a labral
tear of the right hip and requested a disability rating of 20% for that condition. Id. She also
perfected her appeal of the other disabilities on appeal. R. at 3606-08.
In a November 2010 statement to VA, the appellant clarified that, in adjudicating her right
shoulder disability, VA had conflated muscle strains and muscle spasms, explaining that “[a] strain
is not the same as recurring spasms, and the spasms do not occur in the shoulder joint.” R. at 3561.
She objected to VA’s associating her claimed muscle spasms with her right shoulder tendonitis.
Id. She reported that her muscle spasms last 4 to 6 days, worsen with movement and result in
functional loss, and cause tenderness to palpation, impaired coordination, weakness, and fatigue.
R. at 3562.
In a June 2011 statement in support of her claim, the appellant advised VA that her knee
conditions caused her “extreme pain, swelling, locking, weakness, and instability[,] [a]ll of which
reduce[] my functional ability.” R. at 3378. She specifically requested that VA consider
evaluating her condition under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. Id.
At a May 2015 hearing before a decision review officer, after several years of development,
the appellant stated that her right thumb, hand, and wrist conditions were aggravated and inflamed
just from rifling through the papers she brought to the hearing. R. at 3298. She testified that her
right thumb, wrist, and forearm conditions are aggravated by numerous activities, including
haircare, using a computer keyboard and mouse, cleaning house, working in the yard, and some
weightlifting. R. at 3299. She reported that her wrist sometimes locks and that her hand
occasionally cramps. Id. She stated that, when the tendon is inflamed, she must stop what she is
doing, apply ice to her hand and wrist, and put on a brace. R. at 3300. The appellant also clarified
that, although she has bursitis in both hips, she also has a significant anterior/superior labral tear
of the right hip that VA had overlooked. R. at 3301-03. The appellant testified that she
experienced locking, effusion, and inflammation in her right knee, especially after activity. R. at
3295. She also asserted that VA examinations had not properly assessed the effect of weightbearing
activities on her knee. R. at 3296.
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In October 2015, the RO issued a Supplemental Statement of the Case (SSOC) continuing
the disability ratings for each of the disabilities on appeal. R. at 177-90. Of note, the RO
characterized the appellant’s right hip disability as “bursitis with labral tear.” R. at 177.
In an undated written statement6 titled “VA Form 4138 comments to continue to appeal to
the B[oard],”7 the appellant advised VA that she was appealing the decisions contained in the
October 2015 SSOC. R. at 149. The appellant argued that, in addition to the 10% disability rating
assigned for chondromalacia of the right knee, she was entitled to separate disability ratings for
osteoarthritis, bursitis, and residuals of torn cartilage, including pain, swelling crepitation, locking,
fatigue, and weakness. R. at 150-52. She specifically requested that the Board address 38 C.F.R.
§ 4.71a, Diagnostic Codes 5256, 5257, 5258, and 5259. R. at 152. With respect to her right wrist
disability, the appellant argued that the September 2015 VA examination was inadequate,
particularly as it purported to accurately reflect her ability to perform repetitive movements. R. at
153. She also identified additional symptoms that she attributed to her tendonitis, including
“burning[,] radiating pain” and stated that, to minimize the pain, she wore a splint to immobilize
her wrist. Id. With respect to her right hip disability, the appellant stated:
VA awarded me [a] 10[%] evaluation for bursitis in my right hip. VA has
FINALLY corrected the records to reflect there is also a labral tear in my right hip.
The bursitis occurs regularly upon waking up and moving in the morning. It is
typically on the near back side of my hip/pelvis area and is painful. It usually
decreases during the day. My right hip condition is compounded by the labral tear.
It is a separate condition that gives me pain and stiffness in the internal front part
of my hip because the cartilage (cushion) is torn internally.
Id. The appellant expressly asked VA why it did not consider her right hip labral tear a disability
separate from her right hip bursitis. R. at 154. She again questioned the adequacy of the September
2015 VA examination with respect to repetitive-use testing. Id.
At a February 2016 hearing before a Board member, the appellant objected to the
“repetitive testing” conducted at the September 2015 VA wrist examination, arguing that
completing 3 movements in under 10 seconds is a “faulty” measurement of repetitive motion. R.
at 74-75. She also asserted that VA had overlooked supinator limitations and damage to the radial
6 In her brief, the appellant identifies this statement as dated November 2015. See Appellant’s Br. at vi.
7 VA Form 21-4138 is entitled “Statement in Support of Claim.” See https://www.va.gov/vaforms/form_detail.asp?FormNo=21-4138.
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nerve and tendon when evaluating her right wrist disability. R. at 76. The appellant testified that
she experienced swelling, pain, locking, and a “twisted feeling” in her knee, all of which worsen
after she stands all day at work. R. at 102-03. She further stated that, after repetitive use, her pain,
swelling, weakness, and fatigue increase. R. at 109.
In April 2016, the Board issued the decision on appeal. The Board first determined that,
under 38 C.F.R. § 4.71a, Diagnostic Code 5203 (impairment of the clavicle or scapula), by which
the appellant’s right shoulder disability was rated by analogy, the evidence did not support an initial
disability rating in excess of 10%. R. at 12-13. The Board found that the appellant’s shoulder
symptoms, including functional loss due to pain, fatigue, and less movement than normal, were
“already taken into consideration . . . as associated with noncompensable limitation of motion
caused by the service-connected tendonitis.” R. at 15 (citing DeLuca v. Brown, 8 Vet.App. 202
(1995); 38 C.F.R. §§ 4.40, 4.45 (2015)). The Board determined that Diagnostic Codes 5200
(ankylosis of scapulohumeral articulation), 5201 (limitation of motion of the arm), and 5202 (other
impairment of the humerus) were not applicable. R. at 13, 15.
The Board next found that the appellant had been awarded the maximum 10% disability
rating under 38 C.F.R. § 4.71a, Diagnostic Code 5215 (limitation of motion of the wrist), for her
right wrist disability and found no evidence of ankylosis to warrant a higher disability rating under
Diagnostic Code 5214 (ankylosis of the wrist). R. at 16.
With respect to the appellant’s right hip disability, the Board noted that bursitis had been
rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251 (limitation of extension of the thigh), and
that the assigned 10% disability rating was the maximum rating available under that diagnostic
code. R. at 19. The Board considered and rejected Diagnostic Codes 5250 (ankylosis of the hip),
5252 (limitation of flexion of the thigh), 5253 (impairment of the thigh), 5254 (flail joint of the
hip), and 5255 (impairment of the femur). R. at 19-20. The Board mentioned the appellant’s right
hip labral tear only in its summary of the September 2015 VA examination: “The VA examiner
diagnosed the [appellant] with right hip bursitis and a labral tear, which was found to be a new and
separate condition unrelated to her right hip bursitis.” R. at 20.
Turning to the appellant’s right knee disability, the Board noted that the condition was
currently assigned a 10% disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260
(limitation of flexion of the leg). R. at 21. The Board determined that the evidence did not support
a higher disability rating under Diagnostic Code 5260 for limitation of flexion, but that the
14
appellant was entitled to a higher, 20% disability rating under Diagnostic Code 5258 for
“dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion.” R. at 24.
The Board additionally considered and rejected Diagnostic Codes 5256 (ankylosis of the knee),
5257 (other impairment of the knee), 5261 (limitation of extension of the leg), and 5262
(impairment of the tibia and fibula). R. at 22, 24. The Board also considered whether the appellant
was entitled to a separate disability rating for instability of the right knee, but concluded that the
appellant’s “complaints of instability are among the symptoms encompassed by the higher 20[%]
evaluation and thus to award a separate evaluation under Diagnostic Code 5257 would be
pyramiding.” R. at 24.
Finally, the Board noted that the appellant’s costochondritis and radiation fibrosis had been
rated noncompensably disabling under 38 C.F.R. § 4.73, Diagnostic Code 5399-5321. R. at 25.
The Board explained that the appellant’s condition had been rated by analogy because “the rating
schedule does not provide a specific diagnostic code for costochondritis.” Id. The Board further
explained that the appellant’s conditions had been “rated analogously under Diagnostic Code 5321
for an injury to Muscle Group XXI, the muscles of respiration of the thoracic muscle group.” Id.;
see 38 C.F.R. § 4.27 (2017). After reviewing the evidence, the Board provided the appellant the
benefit of the doubt and increased the disability rating assigned for costochondritis and radiation
fibrosis to 10% “for moderate impairment under Diagnostic Code 5321.” R. at 28. The Board
found that the maximum 20% disability rating under Diagnostic Code 5321 was not warranted in
the absence of evidence of “cardinal signs of muscle injury or other pathology.” Id. This appeal followed.

II. ANALYSIS
On appeal, the appellant raises numerous arguments. First, she asserts that the Board
erroneously conflated injuries to her trapezius, latissimus dorsi, and pectoralis major muscles with
her right shoulder disability and therefore failed to consider the possibility of separate disability
ratings for the muscle injuries. Appellant’s Br. at 17-19. Second, she argues that the Board
provided inadequate reasons or bases for its determinations that a separate disability rating was
not warranted to compensate her complete right wrist disability picture and that referral for
consideration of entitlement to an extraschedular disability rating for her right wrist disability was
not warranted. Id. at 19-23. Third, the appellant contends that the Board provided inadequate
15
reasons or bases for its denial of a higher or separate disability rating for her right hip disability
because the Board failed to address the history of the labral tear of the right hip. Appellant’s Br.
at 23-25. Fourth, the appellant argues that the Board’s determination that her right knee disability
is more properly compensated under Diagnostic Code 5258 amounts to a reduction—to a
noncompensable disability rating—of benefits under Diagnostic Code 5260, and that the Board
failed to adequately explain such reduction. Appellant’s Br. at 25-27. She asks that the Court
reverse the Board’s “reduction” of her disability rating under Diagnostic Code 5260. Appellant’s
Br. at 27. Fifth, the appellant asserts that the Board provided inadequate reasons or bases for its
conclusion that the assignment of a separate disability rating for instability of the right knee under
Diagnostic Code 5257 would amount to pyramiding. Appellant’s Br. at 28. Finally, the appellant
argues that the Board erred in finding the September 2015 VA examination adequate because the
examiner did not adequately explain her conclusion—with respect to all of the appellant’s
disabilities—that she could not estimate the additional functional limitation during flareups or after
repetitive use because the appellant was not examined during flareups or after repetitive use.
Appellant’s Br. at 28-30.
The Secretary disputes each of these arguments. He asserts that the Court should affirm
the Board decision on appeal because the appellant has failed to carry her burden of demonstrating
prejudicial error on the part of the Board. See generally Secretary’s Br. at 5-29. Of note, the
Secretary contends that a claim for benefits for a labral tear of the right hip was not before the
Board and therefore the Board was not required to address it. Id. at 15-19.
A. Right Shoulder Disability and Costochondritis with Radiation Fibrosis
The appellant’s right shoulder disability is rated 10% disabling under 38 C.F.R. § 4.71a,
Diagnostic Code 5201-5203, for “right shoulder tendonitis with right trapezius, pectoralis[,] and
latissimus dorsi strain associated with radiation therapy.” R. at 185. In this case, the hyphenated
diagnostic code indicates that the appellant’s condition is limitation of motion of the arm (5201),
rated as impairment of clavicle or scapula (5203). See 38 C.F.R. § 4.27. The appellant’s
costochondritis is rated 10% disabling under 38 C.F.R. § 4.73, Diagnostic Code 5399-5321, for
“costochondritis and radiation fibrosis[,] anterior right chest (also claimed as chest wall pain).” R.
at 27, 187. As noted above, this is a rating by analogy. R. at 25; 38 C.F.R. § 4.27.
The appellant concedes that Diagnostic Code 5201 is “appropriate” for her right shoulder
tendonitis, and that Diagnostic Code 5321, which concerns Muscle Group XXI, is “appropriate”
16
for her costochondritis. Appellant’s Br. at 17, 18. She notes, however, that the medical evidence
reveals that her “chronic radiation fibrosis-related” right trapezius, latissimus dorsi, and pectoralis
muscle strains involve Muscle Groups I and II, see R. at 521 (September 2015 VA examination),
which are compensated by 38 C.F.R. § 4.73, Diagnostic Codes 5301 and 5302. Appellant’s Br. at
18. Accordingly, she argues that the Board failed to consider whether she is entitled to separate
disability ratings under these diagnostic codes. Id. at 19.
It is well settled that the Board must provide a statement of the reasons or bases for its
determination “adequate to enable a claimant to understand the precise basis for the Board’s
decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527
(1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). This
statement must include consideration of evidence favorable to the appellant and the reasons for
rejecting that evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board is also required to consider and discuss in its
decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski,
1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302
(2001) (per curiam order).
A review of the Board decision reveals that, in recounting the September 2015 VA
examination, the Board acknowledged that the examiner stated that Muscle Groups I and II were
implicated in the appellant’s shoulder disability but failed to consider whether separate disability
ratings were warranted under Diagnostic Codes 5301 and 5302. R. at 27-28; see R. at 12-15.
Although the Secretary argues that the appellant fails to cite any evidence that her muscle strains
affect the movements contemplated by Diagnostic Codes 5301 (“[u]pward rotation of scapula;
elevation of arm above shoulder level”) and 5302 (“[d]epression of arm from vertical overhead to
hanging at side,” “downward rotation of scapula,” and “forward and backward swing of arm”),
Secretary’s Br. at 6-8, he does not dispute that (1) the evidence shows the involvement of Muscle
Groups I and II and (2) the Board did not consider the applicability of these diagnostic codes in
assessing the appellant’s injuries. The Secretary essentially asks the Court to make factual findings
that it is not empowered to make in the first instance. It is the Board’s responsibility, as factfinder,
to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson,
19 Vet.App. 362, 369 (2005). The Court may only review the Board’s factual findings for clear
error. Owens v. Brown, 7 Vet.App. 429, 433 (1995).
17
Because the Board failed to consider “potentially applicable” diagnostic codes, see
Schafrath, 1 Vet.App. at 593, the Court concludes that the Board provided inadequate reasons or
bases for its decision regarding the appellant’s right shoulder disability, see 38 U.S.C. § 7104(a),
(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. Because the appellant’s muscle
strains appear to implicate both the Board’s decision regarding the appellant’s right shoulder
disability and the Board’s decision regarding the appellant’s costochondritis with radiation fibrosis,
the Court will vacate both portions of the Board’s decision and remand these matters forvreadjudication.
B. Right Wrist Disability
The appellant next argues that the Board provided inadequate reasons or bases for itsvdeterminations that she is not entitled to (1) “additional ratings” or (2) an extraschedular disability
rating for her right wrist disability. Appellant’s Br. at 19. She contends that the medical evidence
shows that her condition is “extremely disabling and affects her wrist, thumb, hand, fingers,
supinator muscle, forearm, elbow, and radial nerve.” Id.
1. Separate Disability Ratings
The appellant asserts that the Board should have addressed the possibility of separate
disability ratings for her right wrist disability symptoms, notably under 38 C.F.R. § 4.71a,
Diagnostic Codes 5206 through 5208 (limitation of motion of the forearm), 5213 (impairment of
supination and pronation of the forearm), and 5228 through 5230 (limitation of motion of
individual digits); 38 C.F.R. § 4.73, Diagnostic Codes 5305 (regarding Muscle Group V), and 5307
through 5309 (regarding the muscle groups of the hand and forearm); 38 C.F.R. § 4.124a,
Diagnostic Codes 8512 through 8712 (regarding the “[l]ower radicular group”), 8515 through 8715
(regarding the median nerve), and 8517 (paralysis of the musculocutaneous nerve). Appellant’s
Br. at 20, 21.
The appellant notes that, at her February 2016 hearing, the Board member expressed
surprise at VA’s failure to consider additional diagnostic codes for her right wrist disability and
quoted the note that appears after 38 C.F.R. § 4.71a, Diagnostic Code 5213: “In all the forearm
and wrist injuries, codes 5205 through 5213, multiple impaired finger movements due to tendon
tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed rating for loss
of use of hand.” 38 C.F.R. § 4.71, Diagnostic Code 5213, Note (2017); see R. at 77. The Board
member stated that the appellant “might be able to get some separate ratings” for her wrist
18
disability and that he would consider that possibility in evaluating her claim. R. at 85. In the
decision on appeal, however, the Board member considered only Diagnostic Codes 5214 and
5215.8 R. at 16, 18.
The Secretary, again, does not dispute the fact that the Board did not consider the
possibility of separate disability ratings for the appellant’s right wrist disability. See Secretary’s
Br. at 8-13. He also does not dispute that, as the appellant asserts, she experiences “burning,
aching, painful motion, paresthesias, numbness, tingling, weakness, swelling, crepitus, locking,
and problems grasping.” Appellant’s Br. at 19 (citing R. at 3299, 3391-92, 3405, 3410, 3577, 3602,
3777); see Secretary’s Br. at 8. Rather, the Secretary argues that there is no evidence that all these
symptoms are caused by the appellant’s DeQuervain’s tendonitis, which the Secretary states
“consists of inflammation of the tendons that pass through the radial portion of the wrist, at the
base of the thumb.” Secretary’s Br. at 8. He states that the appellant “simply assumes that her
[DeQuervain’s tendonitis] is the cause of every debilitating symptom that she experiences in her
arm,” but argues that “this assumption is entirely at odds with the actual nature of [DeQuervain’s
tendonitis], which is well described.” Id. at 9.
Again, the Secretary’s argument asks the Court to make factual findings in the first instance.
The Court declines to do so. See Washington, 19 Vet.App. at 369; Owens, 7 Vet.App. at 433. In
the absence of any discussion by the Board of the possibility that the appellant is entitled to
separate disability ratings for her right wrist disability under potentially applicable diagnostic
codes, the Court concludes that the Board provided inadequate reasons or bases for its conclusion
that the appellant is not entitled to an initial disability rating in excess of 10% for her right wrist
disability. See 38 U.S.C. § 7104(a), (d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-
57; see also Schafrath, 1 Vet.App. at 593. The Court will therefore vacate this portion of the
Board’s decision and remand the matter for readjudication.

2. Extraschedular Disability Rating
Given this disposition, the Court will not now address the appellant’s argument regarding
the Board’s determination that referral for consideration of entitlement to an extraschedular
disability rating is not warranted. See Appellant’s Br. at 21-23; see also Quirin v. Shinseki,
8 The appellant does not dispute that, as the Board found, she has been awarded the maximum disability
rating under Diagnostic Code 5215 and that she does not meet the criteria for a disability rating under Diagnostic Code
5214. R. at 18.
19
22 Vet.App. 390, 395 (2009) (noting that “the Court will not ordinarily consider additional
allegations of error that have been rendered moot by the Court’s opinion or that would require the
Court to issue an advisory opinion”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam
order). The Court concludes that this issue has been expressly raised by the appellant and,
therefore, the Board must discuss it on remand. See Robinson v. Peake, 21 Vet.App. 545, 553
(2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
C. Right Hip Disability
The appellant next contends that the Board failed to provide adequate reasons or bases for
its determination that she is not entitled to an initial disability rating in excess of 10% for a right
hip disability. Appellant’s Br. at 23-25. Specifically, she argues that “the Board failed to address
the entire history of the hip labral tear claim.” Id. at 24. The Secretary states that it is “clear” that
the appellant has a labral tear in her right hip and concedes that “the RO has failed to properly
address” the appellant’s claim, Secretary’s Br. at 15, but nevertheless argues that a claim for
benefits for a labral tear of the right hip is not in appellate status, id. at 16-19. The Court agrees.
Although the Court understands the appellant’s frustration with VA’s failure to recognize
her claim for benefits for a labral tear of the right hip, the fact remains that this claim was never
adjudicated by the RO, was never the subject of an NOD or a Substantive Appeal—except to the
extent that the appellant attempted to clarify her claim—and was not before the Board. See Sellers
v. Shinseki, 25 Vet.App. 265, 274 (2012) (“[T]he Board is unable to act on a ‘matter’ absent an
appealable, binding RO decision that is adverse to the claimant.”). Accordingly, the Court lacks
jurisdiction to address her argument and must therefore dismiss her appeal of this issue. As the
Secretary asserts, the appellant’s recourse is to ask the RO to adjudicate what the Secretary here
concedes is a pending claim for benefits for a labral tear of the right hip. See Secretary’s Br. at 19.
If the RO fails to do so, the appellant is free to file a petition for extraordinary relief with the Court.

D. Right Knee Disability
1. Choice of Diagnostic Code
The appellant contends that the Board’s assignment of a 20% disability rating under
Diagnostic Code 5258 amounts to a disability rating reduction from 10% to noncompensable under
Diagnostic Code 5260. Appellant’s Br. at 25-27. The Secretary counters that the basis for the
appellant’s disability rating for her right knee disability, regardless of the diagnostic code under
which it has been rated, has always been painful motion. Secretary’s Br. at 20-22. Accordingly,
20
he argues that the Board’s change in diagnostic code in the decision on appeal “makes no
substantive difference.” Id. at 21.
The Court notes that, in August 2007, the RO granted the appellant’s claim for benefits for
chondromalacia of the right knee and determined that, based on objective evidence of painful
motion and pursuant to 38 C.F.R. § 4.59, a 10% disability rating—the minimum rating available
under 38 C.F.R. § 4.71a, Diagnostic Code 5262 (impairment of the tibia and fibula)—was
warranted. R. at 4094-95, 4109; see 38 C.F.R. § 4.59 (2017) (providing that VA will “recognize
actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the
minimum compensable rating for the joint”). In April 2011, the RO continued the 10% disability
rating for chondromalacia of the right knee and stated that the rating was based on “subjective
complaints of painful motion,” R. at 3455, but changed the diagnostic code to 5260 (limitation of
flexion of the leg) without explanation, R. at 3457. In the decision on appeal, the Board changed
the appellant’s diagnostic code to 5258 (“Cartilage, semilunar, dislocated, with frequent episodes
of ‘locking,’ pain, and effusion into the [knee] joint”), finding that it best compensated the
appellant’s symptoms.
The Court need not decide whether the Board’s assignment of a 20% disability rating under
Diagnostic Code 5258 amounts to an implicit reduction of the appellant’s previously assigned 10%
disability rating under Diagnostic Code 5260. This is so because, as the appellant argues, separate
disability ratings under Diagnostic Code 5258 and 5260 are not precluded. Appellant’s Br. at 27.
Recently, the Court expressly held that an evaluation under Diagnostic Code 5258 does not preclude a separate evaluation under Diagnostic Code 5261. Lyles v. Shulkin, __ Vet.App. __, __, U.S. Vet. App. No. 16-0994, slip op. at 6, 2017 WL 5891831, at *4-6 (Nov. 27, 2017). Diagnostic Code 5261 (limitation of extension of the leg) is the corollary of Diagnostic Code 5260 (limitation of flexion of the leg),9 and the Court therefore concludes that Lyles is applicable in this case.
Here, the Board simply determined that the evidence did not support the assignment of a disability rating higher than 20%—the rating the Board assigned under Diagnostic Code 5258—under any other diagnostic code, including Diagnostic Code 5260. R. at 24. The Board did not consider whether the appellant may be entitled to a separate disability rating under Diagnostic Code 5260. See R. at 21-24. Given the Court’s recent holding in Lyles, this was error.
9 Extension is “the movement that straightens or increases the angle between the bones or parts of the body.” DORLAND’S at 662. Flexion is “the act of bending or condition of being bent.” Id. at 717.
21

Accordingly, the Court will remand the appellant’s claim for benefits for a right knee disability for
the Board to consider the possibility of entitlement to a separate disability rating under Diagnostic
Code 5260. As noted in the introduction, the Court is not disturbing the Board’s favorable finding
that a 20% disability rating is warranted under Diagnostic Code 5258. See Medrano, 21 Vet.App.
at 170.
2. Separate Disability Rating for Instability
The appellant argues that the Board failed to adequately explain why she is not entitled to
a separate disability rating under Diagnostic Code 5257 for instability or subluxation of the knee.
Appellant’s Br. at 28. The Secretary maintains that the Board properly determined that a separate
disability rating under Diagnostic Code 5257 would be pyramiding and that “[t]here simply is no
evidence . . . that [the a]ppellant’s right knee has ever manifested ligamentous laxity, instability,
or subluxation.” Secretary’s Br. at 24.
With respect to the possibility of a separate disability rating for instability under Diagnostic
Code 5257, the Board found: “[T]he [appellant’s] complaints of instability are among the
symptoms encompassed by the higher 20[%] evaluation [under Diagnostic Code 5258] and thus
to award a separate evaluation under Diagnostic Code 5257 would be pyramiding.” R. at 24. The
Court concludes that the Board’s explanation is conclusory and therefore inadequate. See
38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. The Board did
not explain how lateral instability or subluxation, for which Diagnostic Code 5257 compensates,
are contemplated by Diagnostic Code 5258, which pertains only to dislocated semilunar cartilage
“with frequent episodes of ‘locking,’ pain, and effusion into the [knee] joint.” 38 C.F.R. § 4.71a,
Diagnostic Code 5258 (2017). Moreover, in Lyles, the Court expressly held that a rating under
Diagnostic Code 5258 does not preclude a rating under Diagnostic Code 5257. Lyles, slip op. at
6, __ Vet.App. at __, 2017 WL 5891831, at *4-6. The Court will therefore remand this matter for
the Board to consider the possibility of separate disability ratings under Diagnostic Code 5257.
E. Adequacy of September 2015 VA Examination
Finally, the appellant argues that the Board erred in finding the September 2015 VA
examination adequate because the examiner repeatedly stated that she could not assess the effect
of the appellant’s right shoulder, right wrist, right hip, and right knee disabilities during flareups
or after repetitive motion because the appellant was not examined during a flareup or after
repetitive motion. Appellant’s Br. at 28-30. In particular, the appellant argues that “it is unclear”
22
whether, in reaching her conclusion, the examiner “considered all procurable and assembled data
and obtained all tests that might reasonably illuminate the medical analysis.” Appellant’s Br. at
29. The Secretary argues that the September 2015 VA examination is adequate. Secretary’s Br.
at 25-29.
A medical examination or opinion is adequate “where it is based upon consideration of the
veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007),
“describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407
(1994)) (internal quotation marks omitted), and “sufficiently inform[s] the Board of a medical
expert’s judgment on a medical question and the essential rationale for that opinion,” Monzingo v.
Shinseki, 26 Vet.App. 97, 105 (2012) (per curiam). A VA joints examination that fails to account
for the factors listed in 38 C.F.R. §§ 4.40 and 4.45, including those experienced during flareups,
is inadequate for evaluation purposes. DeLuca, 8 Vet.App. at 206-07.
For an examination to comply with § 4.40, the examiner must “obtain information about
the severity, frequency, duration, precipitating and alleviating factors, and extent of functional
impairment of flares from the veteran.” Sharp v. Shulkin, 29 Vet.App. 26, 34 (2017). It is
anticipated that “examiners will offer flare opinions based on estimates derived from information
procured from relevant sources, including the lay statements of veterans,” id. at 35, and the
examiner’s determination in that regard “should, if feasible, be portrayed in terms of the degree of
additional range-of-motion loss due to pain on use or during flare-ups,” DeLuca, 8 Vet.App. at 206
(internal quotation marks, alteration, and citation omitted). See Mitchell v. Shinseki, 25 Vet.App.
32, 44 (2011) (explaining that it is important for a medical examiner to note “whether and at what
point during the range of motion the [veteran] experience[s] any limitation of motion that [is]
specifically attributable to pain”). A medical opinion that a determination cannot be provided
without resort to speculation is adequate when it is “clear that an examiner has ‘considered all
procurable and assembled data'” and the examiner’s inability to provide a nonspeculative opinion
“‘reflect[s] 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, 29 Vet.App. at 33 (quoting Jones v. Shinseki, 23 Vet.App. 382, 390
(2010)).
The Board acknowledged the following:
23
[I]n several statements in the record[,] as well as at her May 2015 and February
2016 hearings, the [appellant] expressed dissatisfaction with her VA examinations.
Essentially, [she] has argued that her examinations were not adequate, because they
are not designed to identify and assess her functional limitations as she experiences
them on a daily basis. She found that the examinations were too short, especially
during repetitive motion testing, and thus could not accurately evaluate her
symptomatology. At her February 2016 Board hearing, the [Board member]
explained that the VA examiners perform the VA examinations as instructed.
The VA examination reports in this case, cumulatively, are accepted as adequate
because they provide evidentiary information that speaks directly to the
[appellant’s] subjective complaints, and the objective findings found on evaluation.
An examination is adequate when there is a reasoned medical explanation
connecting a clear conclusion with supporting data, so that evaluation of the
claimed disability will be a fully informed one and does not require the Board to
exercise independent medical judgment but allows the Board to consider and weigh
it against contrary opinions. Thus, while the [appellant] has found that the
examinations were insufficient to properly assess her disabilities, the Board finds
that they are adequate to evaluate the [appellant’s] service-connected disabilities,
based on the rating criteria and in combination with the Board’s consideration of
the [appellant’s] subjective complaints.
R. at 8-9 (citations omitted).
Although the Board recited the requirements of DeLuca and §§ 4.40 and 4.45, R. at 10-12,
the Board did not consider whether the September 2015 VA examination complied with those
requirements before finding the examination adequate. R. at 8-9. In light of the Court’s recent
decision in Sharp, in which the Court expressly held that “neither the law nor VA practice requires
that an examination be conducted during a flare for the functional impairment caused by flares to
be taken into account,” and stated that “DeLuca and its progeny clearly . . . anticipated that
examiners would need to estimate the functional loss that would occur during flares,” 29 Vet.App.
at 34, the Court concludes that remand is necessary for the Board to reassess the adequacy of the
September 2015 VA examination before readjudicating the appellant’s claims.
The appellant is free to submit additional evidence and argument on all remanded matters,
including the specific arguments raised here on appeal, and the Board is required to consider any
such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board must consider additional evidence and argument in assessing
entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). The Court reminds the Board that “[a] remand is meant to entail a critical
24
examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
The appeal of the Board’s April 12, 2016, decision that dismissed the matter of entitlement
to an initial compensable disability rating for bilateral plantar fasciitis is DISMISSED. After
consideration of the parties’ pleadings and a review of the record, the appellant’s appeal of a claim
for benefits for a labral tear of the right hip is DIMISSED, and the remainder of the Board’s
April 12, 2016, decision is VACATED and the vacated matters are REMANDED for further
proceedings consistent with this decision.
DATED: December 7, 2017
Copies to:
Katy S. Clemons, Esq.
VA General Counsel (027)

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