Veteranclaims’s Blog

July 24, 2018

Single Judge Application; Joints[Knees]; § 4.59; Correia, 28 Vet.App. at 168; tested for pain in weightbearing and nonweight-bearing; Sharp; Mitchell; DeLuca;

Excerpt from decision below:

“Additionally, § 4.59 requires that “certain range of motion testing be conducted whenever possible in cases of joint disabilities.” Correia, 28 Vet.App. at 168. The regulation specifies that “[t]he joints involved should be tested for pain on both active and passive motion, in weightbearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”
38 C.F.R. § 4.59 (2018).

“If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary . . . , he or she should clearly explain why that is so.” Correia, 28 Vet.App. at 170.”

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“In short, the Board did not discuss the adequacy of the VA examinations as they relate to Sharp, Mitchell, DeLuca, and § 4.40 and § 4.45. See R. at 17-19.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2446
MARK W. ELLIS, APPELLANT,
V.
PETER O’ROURKE,
ACTING 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, Mark W. Ellis, through counsel appeals a June 20,
2017, Board of Veterans’ Appeals (Board) decision that denied entitlement to a disability rating in
excess of 10% for a left knee disability prior to January 20, 2015, and to a disability rating in
excess of 10% for a right knee disability. Record (R.) at 1-23. 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 vacate the Board’s decision and remand the matters for
further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from September 1969 to March
1976 and in the U.S. Navy from March 1978 to July 1984. R. at 775. In October 1984, a VA
regional office (RO) granted the appellant’s claim for benefits for a left knee disability and assigned
a 10% disability rating. R. at 1197-98. He was later awarded benefits for a right knee disability,
which was also rated 10% disabling. See R. at 775.
2
In June 2011, the appellant sought increased disability ratings for his knee disabilities. R.
at 804-06. He attached a September 2010 letter from Comprehensive Health Services, which had
performed an examination of the appellant in connection with his application for employment with
the Transportation Security Administration (TSA). R. at 698. The letter advised the appellant that
he had been medically disqualified from consideration for employment as a Transportation
Security Officer because of his knee condition. Id.
In August 2011, the appellant underwent a VA joints examination. R. at 785-90. He
complained that his knee pain interfered with sleep and stated that his knees swell throughout the
day. R. at 785. He further reported giving way, pain, and weakness, and denied instability,
stiffness, incoordination, episodes of dislocation or subluxation, episodes of locking, effusion, and
inflammation. R. at 787. The appellant reported no flareups. Id. He stated that he could stand
only for a few minutes, that he could walk more than a quarter-mile but less than 1 mile, and that
he always used knee braces. Id. The examiner recorded that the appellant had an antalgic gait. R.
at 788. Physical examination revealed edema and crepitation, but no instability or abnormalities.
Id. Range of motion testing revealed objective evidence of pain with active motion in both knees
from 0 to 140 degrees, with evidence of pain on repetitive motion, but no evidence of additional
limitations after three repetitions of range of motion. R. at 788-89. The examiner noted that the
appellant had retired a few months earlier for medical reasons, but found that the appellant’s
bilateral knee conditions would have “significant effects” on his usual occupation in the nature of
decreased mobility, problems with lifting and carrying, decreased strength in the lower extremities,
and pain. R. at 789. The examiner determined that the appellant’s knee conditions had a mild
effect on his ability to bathe and do chores, a moderate effect on his ability to shop and travel, and
a severe effect on his ability to exercise and engage in sports and recreation. Id.
In November 2011, the RO denied the appellant’s request for increased disability ratings
for his knee conditions. R. at 771-76. The appellant filed a Notice of Disagreement with that
decision, R. at 754-55, and ultimately appealed to the Board, R. at 690-98.
VA treatment records reveal the appellant’s continued bilateral knee complaints. See R. at
338-39 (November 2013), 340 (January 2014), 343 (December 2014). In January 2015, the
appellant underwent a total left knee replacement. R. at 412-20. Accordingly, he was awarded a
temporary total convalescent rating for the left knee between January 20, 2015, and February 29,
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2016. R. at 542-46. The RO assigned a 30% disability rating for the appellant’s left knee disability
from March 1, 2016. R. at 543.
In March 2016, the appellant testified at a hearing before a Board member and clarified
that he was appealing the 10% rating in effect for his left knee prior to January 20, 2015, and the
10% disability rating assigned for his right knee disability. R. at 384. The appellant stated that he
was still having “problems” with his right knee and that he had spoken to his doctor about replacing
the knee, but that his doctor had advised against it for the time being. R. at 385-86. The appellant
also responded affirmatively to his representative’s queries regarding incapacitation, range of
motion, and instability of the right knee. R. at 386. The Board member advised the appellant that,
“if there’s instability that’s been documented in either knee, a separate rating can be awarded for
that.” R. at 387. The appellant reported experiencing instability in the left knee prior to his surgery
and stated that he constantly wore a brace to help. R. at 388. He also alleged inadequacy in the
August 2011 VA examination, stating: “[I]t actually took me longer to take that brace off and put
it back on th[a]n the [examiner] examined me.” Id. He stated that he was in the room for “three
minutes,” that the examiner did not ask him any questions, and that he flexed the appellant’s knee
one time before concluding the examination. R. at 388-89. The appellant voiced concerns that
the examiner had not listened to him because there was no mention of instability in the August
2011 VA examination report. R. at 389. The appellant also testified that, prior to his left knee
replacement, he had to go on limited duty at his job as a toll collector because of instability. R. at
393. He reported that the twisting and turning required for the job made him fearful that he would
fall in front of a car. Id.
In July 2016, the Board denied the appellant’s request for a disability rating in excess of
10% for his left knee disability prior to January 20, 2015. R. at 318-33. The Board remanded the
appellant’s request for an increased disability rating for his right knee condition for further
development, including a new VA medical examination. Id. The appellant appealed the denied
portion of the Board’s decision to the Court.
In November 2016, the appellant underwent a VA joints examination to determine the
current severity of his right knee disability. R. at 163-72. The examiner noted the appellant’s
complaints of constant pain in the right knee, as well as his report that steroid injections resulted
in only short-term improvement. R. at 164. The examiner conducted range of motion testing using
a goniometer, but indicated that passive and weight-bearing testing was not completed because of
4
“potential risk of injury to the [appellant].” R. at 163. The appellant reported flare-ups of his right
knee condition 1 or 2 times per week in the nature of severe pain that lasts for hours. R. at 165.
The examiner stated: “In regards to additional per cent loss of motion during a flare
episode/rep[etitive] movement, this examiner is not able to accurately determine additional loss of
motion without resorting to mere speculation. Examiner is unable to determine any measurable
objective evidence to determine additional loss of motion during flares/rep[etitive] movement.”
R. at 165-66. The examiner recorded the appellant’s self-described functional loss or impairment
as follows: “Limited walking. No running or contact sports. Avoids stairs, kneeling[,] and
squatting.” R. at 166. Range of motion testing revealed “[a]bnormal or outside of normal range”
measurements of 0 to 120 degrees of flexion and 120 to 0 degrees of extension. Id. The examiner
wrote that pain was noted on examination and caused functional loss and also noted pain on weight
bearing. Id. The appellant completed repetitive use testing without additional functional loss or
loss of range of motion after three repetitions. R. at 167. The examiner indicated that she was
unable to determine without resort to speculation whether pain, weakness, fatigability, or
incoordination significantly limited the appellant’s functional ability with repeated use over a
period of time. Id. The examiner found “additional factors contributing to disability” of the
appellant’s right knee condition, namely disturbance of locomotion and interference with standing.
R. at 168. Strength testing was normal and the examiner found no ankylosis. R. at 169. The
examiner answered “no” to whether the appellant had a history of recurrent subluxation or lateral
instability in the right knee. Id. Stability testing revealed no instability. R. at 169-70. In response
to whether the appellant’s right knee condition affected his ability “to perform any type of
occupational task (such as standing, walking, lifting, sitting, etc.),” the examiner answered “yes”
and wrote: “sedentary employment: desk/computer work.” R. at 172.
In February 2017, the parties entered into, and the Court granted, a joint motion for remand
regarding the appellant’s left knee disability, in which they agreed that the Board had failed to
consider the appellant’s lay statements regarding instability of the knee. R. at 140-41. The parties
further agreed that “there is no indication in the rating schedule that [38 C.F.R. § 4.71a, [Diagnostic
Code] 5257 only considers objective medical evidence.” Id.
In June 2017, the Board issued the decision on appeal. With respect to the appellant’s
request for a disability rating in excess of 10% prior to January 20, 2015, for the left knee, the
Board first stated that the appellant’s 10% disability rating had been based on 38 C.F.R. § 4.59,
5
which provides for at least the minimum compensable disability rating where there is painful
motion of the joint. R. at 7. The Board then determined that, for the period on appeal, the
appellant’s left knee did not meet the schedular limitation of motion requirements for a higher
disability rating under either Diagnostic Code 5260 or 5261. R. at 7-8. The Board found no
evidence of ankylosis and thus denied entitlement to a higher disability rating under Diagnostic
Code 5256. R. at 8. The Board noted “subjective complaints of knee pain and swelling and
objective evidence of an antalgic gait and the issuance of a knee brace by [the appellant’s] primary
care physician,” as well as the August 2011 VA examiner’s report of severe effects on some of the
appellant’s activities of daily living, but found that the appellant’s “functional limitation of the left
knee does not approach the criteria for a compensable evaluation for either limited flexion or
extension” under Diagnostic Code 5260 or 5261 based on application of 38 C.F.R. §§ 4.40 and
4.45. R. at 8-9. The Board also considered the possibility of a separate disability rating for
instability under Diagnostic Code 5257, but found “no objective, competent indication of lateral
instability or recurrent subluxation as contemplated under that diagnostic code, nor . . . the near
equivalent of such symptomatology.” R. at 9.
Turning to the appellant’s right knee disability, the Board stated that the appellant’s
condition had been rated on the basis of painful motion under § 4.59. R. at 14. The Board
determined that the appellant failed to meet the schedular limitation of motion criteria necessary
for a higher disability rating under Diagnostic Code 5260 or 5261. Id. The Board found no
evidence of ankylosis of the right knee and thus denied entitlement to a higher disability rating
under Diagnostic Code 5256. Id. The Board then noted the August 2011 VA examiner’s report of
severe effects on some of the appellant’s activities of daily living, as well as the appellant’s
complaints of swelling and pain that caused functional loss, as confirmed by the November 2016
VA examiner, but concluded that the appellant’s “functional limitation of the right knee does not
approach the criteria for a compensable evaluation for either limited flexion or extension” based
on the application of § 4.40 and § 4.45. R. at 15. Finally, the Board considered the possibility of
entitlement to a separate disability rating for instability under Diagnostic Code 5257 based on the
appellant’s reports of instability and giving way, but “afford[ed] more weight to the objective
medical evidence of record showing no right knee lateral instability.” R. at 15-16. This appeal
followed.
6
II. ANALYSIS
On appeal, the appellant contends that the Board erred in requiring objective evidence of
instability for a separate disability rating under Diagnostic Code 5257 and providing an inadequate
statement of reasons or bases for its conclusion that the appellant’s lay statements did not
demonstrate the near equivalent of instability. Appellant’s Brief (Br.) at 10-16. The appellant next
argues that the Board erred in finding that VA satisfied its duty to assist because neither the August
2011 nor the November 2016 VA joints examination fully complied with Sharp v. Shulkin,
29 Vet.App. 26 (2017), Correia v. McDonald, 28 Vet.App. 158 (2016), Mitchell v. Shinseki,
25 Vet.App. 32 (2011), or DeLuca v. Brown, 8 Vet.App. 202 (1995). Id. at 16-23. Finally, the
appellant asserts that the Board provided inadequate reasons or bases for its conclusion that he is
not entitled to higher disability ratings based on functional loss under § 4.40 and § 4.45. Id. at
23-27. The Secretary disputes these arguments and urges the Court to affirm the Board’s decision.
Secretary’s Br. at 8-28.
Under certain circumstances, and as part of its duty to assist claimants, VA must provide a
medical examination. See 38 U.S.C. § 5103A(d). “[O]nce the Secretary undertakes the effort to
provide an examination [or opinion] . . . he must provide an adequate one.” Barr v. Nicholson,
21 Vet.App. 303, 311 (2007). 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). An examiner’s
statement that an opinion 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)).
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,
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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, 29 Vet.App. at 34. 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, 25 Vet.App. at 44
(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”).
Additionally, § 4.59 requires that “certain range of motion testing be conducted whenever possible in cases of joint disabilities.” Correia, 28 Vet.App. at 168. The regulation specifies that “[t]he joints involved should be tested for pain on both active and passive motion, in weightbearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”
38 C.F.R. § 4.59 (2018).

“If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary . . . , he or she should clearly explain why that is so.” Correia, 28 Vet.App. at 170.
“Whether a medical [examination or] opinion is adequate is a finding of fact, which the
Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, 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, 1 Vet.App. at 56-57.
Here, the Board noted the appellant’s assertions that the August 2011 and November 2016 VA examinations were inadequate for various reasons, but disagreed. The Board explained:
The 2011 and 2016 VA examiners reviewed the [appellant’s] pertinent medical
history, conducted clinical evaluations of him, and provided adequate discussions
of relevant symptomatology of his knee disabilities. Because both VA examination
8
reports contained clear conclusions with supporting data, the Board finds that they
were adequate. Contrary to the [appellant’s] contentions, the Board finds that both
VA examiners thoroughly considered the [appellant’s] subjective reports, medical
history, and objective medical evidence, and that the examiners’ respective findings
adequately reflected the current nature and severity of his knee conditions.
Regardless, it is not the examiner’s job to consider the [appellant’s] lay statements
in the context of assigning the proper disability rating—that responsibility lies with
VA adjudicators. The Board finds that the [appellant] was afforded adequate VA
examinations of his knees and there is no duty to provide another VA examination.
R. at 19 (citation omitted).

A. Correia
On appeal, the appellant contends that the Board’s conclusion regarding the adequacy of
the VA examinations is erroneous and unsupported by adequate reasons or bases. First, he argues that neither the August 2011 examination nor the November 2016 examination complied with Correia because the examiners failed to test his knees on passive motion and in weight-bearing and non-weight-bearing circumstances. Appellant’s Br. at 16-18.
The Secretary essentially concedes that the August 2011 examination does not comply with Correia, Secretary’s Br. at 18, but argues that the error is harmless. See 38 U.S.C. § 7261(b)(2)(requiring the Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that the harmless-error analysis applies to the Court’s review of Board decisions and that the burden is on the appellant to show that he suffered prejudice as a result of VA error). With respect to the appellant’s left knee, the Secretary contends that, because the appellant underwent a total left knee replacement in 2015, the error on the part of the August 2011 examiner cannot be corrected because any new examination “would not, and cannot, accurately reflect the severity of [the a]ppellant’s left knee prior to this surgery.” Id. at 18-19. As the appellant points out in reply, however, in some circumstances, VA has a duty to provide a
retrospective medical opinion, and therefore the Secretary’s argument is unavailing. See Reply Br. at 4 (citing Chotta v. Peake, 22 Vet.App. 80, 85 (2008)).
To the extent that the Secretary argues that the November 2016 VA examination of the
appellant’s right knee cured any error in the August 2011 VA examination with respect to Correia, Secretary’s Br. at 19, that is simply a post hoc rationalization for the Board’s decision. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc
9
rationalizations’ for agency action, advanced for the first time in the reviewing court.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”). The Board itself did not address the requirements of Correia with respect to either examination, and it is not the Court’s province to evaluate in the first instance the November 2016 VA examiner’s
statement regarding the feasibility of conducting the testing enumerated in § 4.59 for the right knee. See Washington v. Nicholson, 19 Vet.App. 362, 369 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995). The Court may not weigh this evidence in the first instance or evaluate its potential effect on the Board’s findings. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (holding “that the evaluation and weighing of evidence are factual determinations committed to the discretion of the factfinder—in this case, the Board”). Remand is thus warranted.
B. Sharp, Mitchell, and DeLuca
The appellant next argues that the August 2011 VA examination report does not comply
with Mitchell and DeLuca because the examiner “failed to specify where during [the appellant’s] range of motion [his] limitation of motion due to pain began.” Appellant’s Br. at 20. He also argues that the November 2016 VA examination is noncompliant with Mitchell and DeLuca because the examiner did not provide opinions regarding the appellant’s functional loss in the right knee during flareups or after repetitive use over time. Id. at 21. The appellant contends that the VA examiner’s statement that she could not provide such an estimate without resorting to speculation runs afoul of Sharp because the examiner did not adequately elicit relevant information regarding his flareups and functional loss. Id.
With respect to the August 2011 examination, the Secretary asserts that the appellant did
not report flareups to the examiner and therefore the examiner had no duty to assess the functional effect of such flareups under DeLuca and Mitchell. Secretary’s Br. at 20-21. He also argues that, to the extent that the August 2011 examination is deficient, as the appellant contends, the error is harmless because the appellant’s left knee has been replaced and because the November 2016 examination cured any error in the August 2011 examination with respect to the right knee. Id. at 21-22. The Secretary further argues that the November 2016 VA examiner provided an explanation consistent with Sharp. Id. at 22-23.
The Secretary, however, provides explanations that the Board itself did not. See Martin,
499 U.S. at 156. In the decision on appeal, the Board concluded that the evidence did not warrant
10
a higher disability rating based on the considerations of Mitchell, DeLuca, and § 4.40 and § 4.45,
see R. at 8, 15, but the Board did not consider whether the medical examinations on which it relied
were sufficient to reach that conclusion. In short, the Board did not discuss the adequacy of the VA examinations as they relate to Sharp, Mitchell, DeLuca, and § 4.40 and § 4.45. See R. at 17-19.
The Court is unable to conclude that the Board’s failure is harmless error and thus remand is
warranted on this basis as well. See Deloach, 704 F.3d at 1380.
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. See Quirin v. Shinseki, 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). On remand, the appellant is free to submit additional
evidence and argument on the 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 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
After consideration of the parties’ pleadings and a review of the record, the Board’s June 20,
2017, decision is VACATED and the matters are REMANDED for further proceedings consistent
with this decision.
DATED: July 23, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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