Veteranclaims’s Blog

December 27, 2018

Single Judge Application; Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016); active and passive motion, [and] in weight-bearing and non-weight-bearing;

Excerpt from decision below:

“Finally, the Court concludes that the Board otherwise failed to ensure that the duty to assist was satisfied. Specifically, no examiners have tested the appellant’s right knee, right hip or lumbar spine “on both active and passive motion, [and] in weight-bearing and non-weight-bearing” positions, nor 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.”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2838
CATHERINE A. CARPENTER, 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, Catherine A. Carpenter, that part of an April 15, 2016, Board of Veterans’ Appeals (Board) decision that (1) granted an initial disability rating of 10%, but no higher, for patella chondromalacia of the right knee; (2) denied a disability rating in excess of 10% for a limitation of flexion, status post-labral tear repair and debridement surgery of the right hip; (3) denied a compensable disability rating for a limitation of extension, status post-labral tear repair and debridement surgery of the right hip, prior to November 12, 2015; and (4) denied an initial disability rating in excess of 10% for degenerative disc disease (DDD) of the lumbar spine, prior to November 12, 2015.1 Record (R.) at 2-40. The appellant argues that the Board (1) failed to provide an adequate statement of reasons or bases for its treatment of the appellant’s service treatment records as well as other evidence of record and (2) failed to obtain VA medical examinations that adequately considered functional loss and tested the appellant in
1 The Board also denied disability ratings in excess of 10% for limitation of extension of the right hip and 40% for DDD of the lumbar spine both since November 12, 2015. The appellant expressly abandons these matters. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that, where an appellant abandons an issue or claim, the Court will not address it). Additionally, the Board denied “separate” service connection for a right knee strain. The appellant presents no argument as to this determination and the Court deems this matter abandoned as well. See id. To the extent the Board’s finding regarding an initial disability rating is favorable, the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
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weight-bearing and non-weight-bearing positions. Appellant’s Brief at 14-26. For the following reasons, the Court will vacate that part of the April 2016 Board decision on appeal and remand the matters for further development and 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 such as their widows, 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 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 honorably in the U.S. Air Force from October 2003 until January 2011 as an aerospace medical journeyman. R. at 4317 (DD Form 214). In January 2010, the appellant underwent a Medical Evaluation Board (MEB) examination. R. at 1518-22. During that examination, her lumbosacral spine flexion was limited to 40, 45, and 45 degrees with pain and tenderness. R. at 1519-20. The MEB narrative summary reported hip pain, chronic back pain, and right hip flexion limited to 10 degrees. R. at 1515-16. The examiner noted an inability to sit or
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stand for prolonged periods, to run 100 yards or carry over 40 pounds, or to perform sit-ups. R. at 1515. The examiner recommended discharge. Id.
In October 2010, her right knee flexion was limited to 60 degrees with pain, and her extension to 20 degrees with pain. R. at 1361. Prior to separation from service, the appellant filed claims for service connection for a right knee, lumbar spine, and right hip disability. R. at 5418-19. An April 2011 rating decision granted service connection for DDD and IVDS of the lumbar spine, status post labral tear repair and debridement surgery of the right hip, and patellar chondromalacia of the right knee, all at a 0% rating. R. at 4261-80.
The appellant was found to be experiencing a flareup during a November 2015 VA hip examination. R. at 114. She reported increased pain with activity, a limited range of motion, loss of strength as well as stability issues during flareups. R. at 108. Upon examination of the right hip, the appellant was found to have weakened movement, a disturbance of locomotion, and interference with sitting and standing. R. at 115. The examiner found that pain, weakness, fatigability, or incoordination did significantly limit the appellant’s functional ability during a flareup and that there was “[n]o further loss of range of motion based on right hip weakened movement and fatigue.” R. at 120. The same examiner also provided a right knee examination that day and the findings from these examinations regarding flareups and functional loss are nearly identical to those of the right hip, except did not include any discussion about the appellant’s weakness of movement. See R. at 122-38, 157-68. Additionally, neither of the examination report discuss the findings of disturbance of locomotion. See R. at 108-21, 122-38, 157-68.
In April 2016, the Board issued the current decision on appeal. R. at 2-40. In denying higher ratings prior to November 12, 2015, for the appellant’s service-connected right knee, right hip and lower back disabilities, the Board did not address any of the in-service evidence related to these conditions; the Board, instead relied on the March 2012 VA examination. See R. at 18-36. The November 2015 VA examination was relied on to deny higher ratings for these disabilities as of the date of the examination. See R. at 18-36.
The Court concludes that the Board provided an inadequate statement of reasons or bases for failing to address the appellant’s service treatment records in denying higher ratings for the appellant’s right knee and lower back disabilities. See 38 U.S.C. § 7104(d)(1) (“Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented
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in the record.”); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (finding that Congress mandated, by statute, that the Board provide a written statement of reasons or bases for its conclusions that is adequate to enable the appellant to understand the precise basis for the Board’s decision and to facilitate review in this Court). Even though these records pre-date the claim period on appeal, they may still be relevant to the claim period, especially given the proximity of this evidence to the date she filed her claim. See Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see also Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013). Remand is required for the Board to provide an adequate statement of reasons or bases for its treatment of the appellant’s service treatment records. Gilbert, 1Vet.App. at 56-57.
The Court also determines that the Board erred in failing to return the November 2015 VA examination for clarification regarding the appellant’s right hip and right knee disabilities. See 38 C.F.R. § 4.2 (2017) (VA is required to “return the [examination] report as inadequate for evaluation purposes” if the report “does not contain sufficient detail”). The examiner found that the appellant exhibited weakness of movement and a disturbance of locomotion for both disabilities, but the examiner failed to provide any information as to where these findings began in the appellant’s range of motion, even though VA regulation considers these limitations to be functional loss. See Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011) (functional loss includes the ability “‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.'” (quoting 38 C.F.R. § 4.40 (2017)). Remand is required for the Board to seek clarification of the November 2015 VA examination. 38 C.F.R. § 4.2.
Finally, the Court concludes that the Board otherwise failed to ensure that the duty to assist was satisfied. Specifically, no examiners have tested the appellant’s right knee, right hip or lumbar spine “on both active and passive motion, [and] in weight-bearing and non-weight-bearing” positions, nor 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.”). Remand is required for the Board to ensure that the duty to assist is satisfied. See 38 U.S.C. § 5103A(d); see also Correia, 28 Vet.App. at 169-70.
Because the Court is remanding the appellant’s claims, it will not address the appellant’s remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant
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may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) 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.”).
For the foregoing reasons, that part of the April 15, 2016, Board decision on appeal is VACATED and the matters are remanded for further development and readjudication.
DATED: March 26, 2018
Copies to:
Jill C. Davenport, Esq.
VA General Counsel (027)

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