Veteranclaims’s Blog

March 4, 2020

Single Judge Application; Knee disability; Lyles v. Shulkin, 29 Vet.App. 107 (2017); Court held that evaluation of a knee disability under DC 5257 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258, and vice versa;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-1526
DARRYL C. HARRIS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Self-represented veteran Darryl C. Harris appeals a March 23, 2017,
Board of Veterans’ Appeals (Board) decision that denied entitlement to a disability evaluation in
excess of 20% since September 26, 1984, for a service-connected right knee disability. Record
(R.) at 2-16.1 Single-judge disposition is appropriate in this case. See Frankel v. Derwinski,
1 In the decision on appeal, the Board addressed assertions that clear and unmistakable error (CUE) exists in
an October 1984 VA regional office (RO) decision based on two separate theories and in an October 1992 RO decision.
R. at 2-16. The Board determined, based on newly submitted service treatment records (STRs), that the October 1984
RO decision should be reconsidered under 38 C.F.R. § 3.156(c) instead of being addressed through a collateral CUE
challenge. R. at 7-13. The Board then increased the initial disability evaluation for the service-connected right knee
disability from 10% to 20%, effective September 26, 1984. Id. To the extent that these determinations are favorable
to Mr. Harris, the Court will not disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court
is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory
authority.”). Specifically, de novo reconsideration under § 3.156(c) is a more favorable procedural posture because
the requirements for CUE are so high. See, e.g., Beverly v. Nicholson, 19 Vet.App. 394, 406 (2005) (noting that
claimants asserting CUE face a “high burden” of proof).
The Board otherwise found that the October 1984 and October 1992 RO decisions did not contain CUE. R.
at 13-16. Because Mr. Harris does not challenge these portions of the Board decision, the appeal as to these matters
will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the
merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014)
(same). Finally, the Board referred to the agency of original jurisdiction for appropriate action the issues of entitlement
to an earlier effective date for a separate 10% evaluation under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003 for
right knee osteoarthritis and whether there was CUE in an October 1991 RO decision. R. at 4-5. The Court has
jurisdiction to review referred issues only to the extent that the appellant argues that remand, rather than referral, was
appropriate. See Young v. Shinseki, 25 Vet.App. 201, 202-03 (2012) (en banc order). Because Mr. Harris does not
2
1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction to review the
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the
Court will set aside that portion of the March 23, 2017, Board decision that denied entitlement to
a higher evaluation for the right knee disability since September 26, 1984, and remand that matter
for readjudication consistent with this decision.
I. FACTS
Mr. Harris served on active duty in the U.S. Army from November 1982 to September

  1. R. at 2965. During service, Mr. Harris sustained injuries to the anterior cruciate ligament
    and lateral meniscus of his right knee necessitating surgical repair (meniscectomy). R. at 1168-
    1227, 1541-49. During the surgical procedure, a portion of a metal surgical instrument broke off
    and the fragment could not be located or removed at that time. R. at 1205-06, 1541-42.
    Upon service separation, Mr. Harris filed for, and was granted, service connection for the
    right knee disability. R. at 2960-63. An initial disability evaluation of 10% was assigned effective
    September 26, 1984, the first day following his separation from service. R. at 2961. The 10%
    evaluation was provided for under DC 5257. Id.; see 38 C.F.R. § 4.71a, DC 5257 (1984) (providing
    a 10% evaluation for “slight” recurrent subluxation or lateral instability). A subsequent October
    1992 rating decision confirmed and continued the 10% evaluation as the most recent VA
    examination “continue[d] to show symptoms of slight knee impairment.” R. at 2820.2
    Upon VA examination in March 2011, Mr. Harris reported right knee pain with prolonged
    weight bearing, constant swelling, and episodes of clicking and locking. R. at 1752. Upon
    diagnostic imaging, the VA examiner noted degenerative changes in the right knee joint and the
    presence of a “tiny metallic foreign body.” R. at 1756. The examiner opined that the osteoarthritis
    and the embedded foreign body were causing a painful right knee joint with clicking and
    instability. R. at 1760.
    challenge the propriety of the Board’s referrals, the Court will not address the referred issues. See Link v. West,
    12 Vet.App. 39, 47 (1998) (“Claims that have been referred by the Board to the RO are not ripe for review by the
    Court.”).
    2 The evaluation for the right knee disability was subsequently increased to 20% under DC 5257, effective
    February 24, 2004. R. at 45.
    3
    While VA was processing his allegations of CUE in the October 1984 and October 1992
    RO decisions, Mr. Harris requested missing STRs from the National Personnel Records Center;
    he submitted a portion of those records to VA in May 2012. R. at 1141-50. In September 2014, the
    NPRC submitted all of the missing STRs to VA. R. at 1167-1227.
    In the March 2017 decision on appeal, the Board addressed Mr. Harris’s assertions that
    CUE existed in the October 1984 RO decision based on two separate theories and in the October
    1992 RO decision based on a single theory. In light of the newly associated STRs, the Board
    recharacterized one of Mr. Harris’s theories of CUE in the October 1984 decision, pursuant to
    § 3.156(c), as a reconsideration of the October 1984 RO decision. R. at 7-8, 12. The Board then
    granted an increase in the initial disability evaluation assigned for the right knee disability from
    10% to 20%, effective September 26, 1984. R. at 16. This appeal followed.
    II. ANALYSIS
    Under a liberal construction of his brief, see De Perez v. Derwinski, 2 Vet.App. 85, 86
    (1992), Mr. Harris argues that the Board failed to provide adequate reasons or bases for its
    determination that a disability evaluation in excess of 20% was not warranted. Appellant’s Informal
    Brief (Br.) at 1, 3-10.3 He argues that the evidence demonstrates that a 30% initial evaluation is
    warranted and asks the Court to assign such an evaluation. Id. at 4-10. The Secretary agrees that
    the Board erred in its determination that a higher evaluation was not warranted, but argues that
    remand, not reversal, is appropriate. Secretary’s Br. at 2-3, 5-9.
    The Board’s determination of the appropriate degree of disability is a finding of fact subject
    to the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown,
    10 Vet.App. 93, 97 (1997). “A factual finding ‘is “clearly erroneous” when although there is
    evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
    conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
    (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The Board must support
    its material determinations of fact and law with adequate reasons or bases. 38 U.S.C. § 7104(d)(1);
    Pederson, 27 Vet.App. at 286; Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
    3 Mr. Harris’s informal brief is not paginated beyond page 3; therefore, the Court will assume pagination in
    the brief in the order the pages appear in the document as docketed.
    4
    1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the
    credibility and probative value of evidence, account for evidence it finds persuasive or
    unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant.
    Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996)
    (table).
    In its decision, the Board reconsidered the October 1984 decision and determined that an
    initial 20% evaluation for the right knee disability was warranted. The Board specifically indicated
    that “[h]ad [the missing STRs] been associated with the claims folder in 1984, the Board finds that
    the objective evidence of record would have supported a 20[% evaluation] per Diagnostic Code
    5258.” R. at 12; see 38 C.F.R. § 4.71a, DC 5258 (providing a 20% evaluation for dislocation of
    meniscal cartilage with frequent episodes of “locking,” pain, and effusion into the joint); see also
    R. at 7-8 (citing § 3.156(c)(3) (discussing the effective date of an award made based all or in part
    on newly associated STRs)). The Board determined that a higher evaluation under any alternative
    DC was not warranted because the evidence did not support a finding of (1) a limitation of flexion
    limited to 15 degrees or extension limited to 20 degrees, (2) severe lateral instability, or
    (3) ankylosis of the right knee joint. R. at 12; see 38 C.F.R. § 4.71a, DCs 5256, 5257, 5260, 5261.
    The Court concludes that the Board failed to provide adequate reasons or bases for its
    decision. The Board awarded the 20% evaluation under DC 5258 without any discussion of
    whether Mr. Harris’s evaluation under DC 5257 is considered a protected evaluation. As noted by
    the Secretary, Mr. Harris’s right knee disability has been continuously evaluated under DC 5257
    since September 1984. Secretary’s Br. at 7 (citing R. at 45). “A disability which has been
    continuously rated at or above any evaluation of disability for 20 or more years . . . will not be
    reduced to less than such evaluation except upon a showing that such rating was based on fraud.”
    38 C.F.R. § 3.951(b) (2017). Once an evaluation is protected, VA is required to discuss § 3.951(b)
    in any subsequent adjudication involving that protected evaluation. Murray v. Shinseki,
    24 Vet.App. 420, 424 (2011).
    Although the Board may have considered the award of a 20% evaluation under DC 5258 a
    greater benefit, a change in the DC can constitute an impermissible reduction under § 3.951(b) as
    it, “in essence, reduce[s] . . . the disability compensation related to [the original DC] to zero.” Id.
    at 426. Moreover, it is unclear whether the 20% evaluation under DC 5258 is a greater benefit as,
    5
    since February 2004, the right knee disability has already been evaluated at 20% under DC 5257,
    see R. at 45, a DC that provides the possibility of a higher schedular evaluation, whereas the 20%
    evaluation assigned by the Board is the maximal schedular evaluation under DC 5258, see
    38 C.F.R. § 4.71a, DCs 5257, 5258. Therefore, without any discussion of Mr. Harris’s protected
    evaluation vis-à-vis the Board’s change in DC, the Board’s reasons or bases are insufficient as they
    do not allow Mr. Harris to fully understand the basis for the decision. See Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 57.
    The Board’s failure to address Mr. Harris’s protected evaluation alone renders its analysis insufficient; however, its error is magnified by our recent precedential decision in Lyles v. Shulkin, 29 Vet.App. 107 (2017). In that case, this Court held, inter alia, that evaluation of a knee disability under DC 5257 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258, and vice versa. Id. at 112-13. Therefore, in assessing whether assigning separate knee evaluations is appropriate, including under DCs 5257 and 5258, the requisite inquiry is whether the manifestations of the disability have already been compensated by an assigned evaluation under another DC; if not, separate evaluation is permitted. See id. As the
    Board did not consider whether Mr. Harris would be entitled to separate evaluations under both DC 5257 and DC 5258, its reasons or bases for denying entitlement to a higher evaluation for the
    right knee disability are insufficient. See Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 57.
    Although Mr. Harris argues that the Court should assign a 30% evaluation for his right
    knee disability, remand is the proper remedy because the Board provided inadequate reasons or
    bases for its decision and additional fact-finding is needed. In its March 2017 decision, the Board
    did not consider the effect of Mr. Harris’s protected evaluation or whether the manifestations of
    his right knee disability were not adequately contemplated by the protected evaluation alone. In
    addition, the Board did not address post-service evidence of instability, but instead solely found
    that the right knee did not manifest in severe lateral instability, R. at 12. As additional fact-finding
    is necessary to make a decision on the claim, remand is the appropriate remedy. See Tucker v.
    West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the
    Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
    for its determinations, or where the record is otherwise inadequate”); see also Deloach v. Shinseki,
    704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that reversal is appropriate only when “the Board
    6
    has performed the necessary fact-finding and explicitly weighed the evidence” and the Court, “on
    the entire evidence, [ ] is left with the definite and firm conviction that a mistake has been
    committed”).
    Given this disposition, the Court need not address Mr. Harris’s additional arguments, which
    could not result in a remedy greater than a remand. However, the Court will provide guidance to
    the Board for readjudication of the claim upon remand. First, the Board’s analysis is devoid of
    discussion as to whether Mr. Harris may be entitled to a higher evaluation on an extraschedular
    basis. In this regard, the Board is not obliged to analyze whether referral for an extraschedular
    evaluation is warranted if referral is neither specifically sought by the claimant or reasonably raised
    by the record. See, e.g., Doucette v. Shulkin, 28 Vet.App. 366, 369-70 (2017); Yancy v. McDonald,
    27 Vet.App. 484, 493-94 (2016). Although it is unclear from the record before the agency whether
    the issue of extraschedular consideration was raised below, Mr. Harris’s briefing to this Court
    clearly raises such an issue. See Appellant’s Informal Br. at 10 (“I would also like to ask the Court
    to consider a higher rating scale than what is used in a normal rating.”). Therefore, upon
    readjudication, the Board should address whether Mr. Harris’s right knee disability warrants
    extraschedular consideration.
    Second, in his informal reply brief, Mr. Harris disagrees with the Secretary’s contention
    that the CUE claims should be dismissed. Appellant’s Informal Reply Br. at 1. Mr. Harris, however,
    has advanced no argument relating to error in the Board’s finding that no CUE existed in the
    October 1984 and October 1992 RO decisions and that the Secretary has not conceded any error;
    therefore, those matters will properly be dismissed. See Pederson, 27 Vet.App. at 281-86;
    Cacciola, 27 Vet.App. at 8. Nevertheless, the Court has determined that the Board erred in its
    reconsideration of the October 1984 claim for an increased evaluation, which addressed the
    propriety of the initial evaluation assigned for the right knee disability. In this regard, the
    arguments Mr. Harris advanced in the context in his CUE claims, such as his duty to assist
    argument, were not considered by the Board in the context of the reconsidered increased evaluation
    claim. Therefore, although Mr. Harris advanced several arguments in furthering his claims for
    CUE, upon readjudication the Board should carefully consider these arguments as they relate to
    whether Mr. Harris is entitled to a higher disability evaluation.
    7
    On remand, Mr. Harris is free to submit those arguments, as well as additional arguments
    and evidence, to the Board in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73
    (1999) (per curiam order), and the Board must consider any such evidence or argument submitted.
    See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand
    is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v.
    Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in
    accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    Upon consideration of the foregoing, that portion of the March 23, 2017, Board decision
    that denied entitlement to a higher evaluation in excess of 20% for the service-connected right
    knee disability since September 26, 1984, is SET ASIDE and the matter is REMANDED for
    readjudication consistent with this decision. The balance of the appeal is DISMISSED.
    DATED: February 28, 2018
    Copies to:
    Darryl C. Harris
    VA General Counsel (027)

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