Veteranclaims’s Blog

April 21, 2020

Single Judge Application; Board is reminded that Diagnostic Code 5257 does not require objective evidence or that medical evidence should be favored over lay evidence when determining whether a compensable rating is warranted under this DC; English v. Wilkie, 30 Vet.App. 347, 352-53 (2018); ensure that VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits; Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); consider “information about the severity, frequency, duration, precipitating and alleviating factors” of flare-ups or “estimate ‘per the veteran’ to what extent, if any, they affect functional impairment.” Sharp, 29 Vet.App. at 32, citing VA CLINICIAN’S GUIDE § 0.1 (March 2002);

Filed under: Uncategorized — veteranclaims @ 11:57 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-7131
STEPHEN SALDANA, APPELLANT,
V.
ROBERT L. WILKIE,
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: Stephen Saldana appeals through counsel that part of an August 23, 2018, Board of Veterans’ Appeals decision that (1) denied an initial disability rating in excess of 10% for service-connected left knee osteoarthritis, effective before January 19, 2018; (2) granted a separate 10% rating, but no higher, for left knee limitation of extension effective from February 23, 2010, to November 8, 2015; (3) granted a separate 10%, but no higher, disability rating for the entire appeal period for left knee instability; and (4) denied a rating in excess of 40% for left knee osteoarthritis.1 Record (R.) at 4-12. The appellant argues that the Board relied on inadequate VA examinations and provided an inadequate statement of reasons or bases in several regards. Appellant’s Brief at 17-29. The Secretary concedes that the Board relied on inadequate VA examinations and provided an inadequate statement of reasons or bases for multiple determinations. Secretary’s Brief at 5-9. For the following reasons, the Court will set aside that part of the August 2018 Board decision on appeal and remand the matters for further development and readjudication.
1 To the extent the Board granted separate ratings for limitation of extension and instability of the left knee, the Court will not disturb these favorable findings. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
2
I.
The Veterans Administration was established in 1930 when Congress consolidated the Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans’ Bureau into one agency. Act of July 3, 1930, ch. 863, 46 Stat. 1016. This Court was created with the enactment of the Veterans’ Judicial Review Act (VJRA) in 1988. See Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). Before the VJRA, VA rules, regulations, and decisions lived in “splendid isolation,” generally unconstrained by judicial review for nearly 60 years. See Brown v. Gardner, 513 U.S. 115, 122 (1994) (Souter, J.).
Yet, the creation of a special court solely for veterans is consistent with congressional intent as old as the Republic. Congress first sought judicial assistance in affording veterans relief when it adopted the Invalid Pensions Act of 1792 which provided “for the settlement of the claims of widows and orphans . . . and to regulate the claims to invalid pensions,” for those injured during the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat 243 (1792) (repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). The act, though magnanimous, curtailed the power of the judiciary, by providing the Secretary of War the ability to withhold a circuit court’s favorable determination to claimant if he believed that the circuit court had erred in favor of the soldier based on “suspected imposition or mistake.” See id.
Chief Justice John Jay2 wrote a letter3 to President George Washington on behalf of the Circuit Court for the District of New York4 acknowledging that “the objects of this act are
2 John Jay served as the first Secretary of State of the United States on an interim basis. II DAVID G. SAVAGE, GUIDE TO THE U.S. SUPREME COURT 872 (4th ed. (2004)). Although a large contributor to early U.S. foreign policy, Jay turned down the opportunity to assume this position full time. Id. at 872, 916. Instead, he accepted a nomination from President Washington to become the first Chief Justice of the Supreme Court on the day the position was created by the Judiciary Act of 1789. Id. Jay resigned his position in 1795 to become the second Governor of New York. Id. He was nominated to become Chief Justice of the Supreme Court again in December 1800, but he declined the appointment.
3 The Supreme Court never decided Hayburn’s Case. See 2 U.S. (2 Dall.) 409, 409 (1792). The case was held over under advisement until the Court’s next session and Congress adopted the Invalid Pensions Act of 1793, which required the Secretary at War, in conjunction with the Attorney General, to “take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States.” Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793). Hayburn’s Case has often been cited as an example of judicial restraint, see, e.g., Tutun v. United States, 270 U.S. 568 (1926), but Supreme Court historian Maeva Marcus has argued persuasively to the contrary. See Maeva Marcus & Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 527. After all, Jay’s letter, included by Dallas, the Court Reporter, in a note accompanying the decision to hold the matter under advisement, is nothing more than an advisory opinion that compelled Congress to change the law in order to make the judiciary the final voice on the review of a Revolutionary War veteran’s right to pension benefits. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.
4 At this time, each Justice of the Supreme Court also served on circuit courts, a practice known as circuit
3
exceedingly benevolent, and do real honor to the humanity and justice of Congress.” See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792). Jay also noted that “judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature.” Id.
This desire to effect congressional intent favorable to veterans has echoed throughout the Supreme Court’s decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S. Ct. 1696, 173 L. Ed. 2d 532 (2009) (Souter, J., dissenting) (stating that congressional “solicitude for veterans is plainly reflected in the Veterans Judicial Review Act of 1988, 38 U.S.C. § 7251 et seq. [VJRA], as well as in subsequent laws that ‘place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions'”); see also Henderson v. Shinseki, 562 U.S. 428, 440 (2011) (declaring that congressional solicitude for veterans is plainly reflected in “the singular characteristics of the review scheme that Congress created for the adjudication of veterans’ benefits claims,” and emphasizing that the provision “was enacted as part of the VJRA [because] that legislation was decidedly favorable to the veteran”).
II.
Justice Alito5 observed in Henderson v. Shinseki that our Court’s scope of review 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. at 432 n.2 (2011); see 38 U.S.C. § 7261. “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. The statutory command that a single judge6 may issue a binding decision is “unambiguous, unequivocal, and unlimited,” see Conroy v. Aniskoff, 507 U.S. 511, 514 (1993). The Court’s practice of treating panel decisions as “precedential” is unnecessary,
riding. See RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S the FEDERAL COURTS AND the FEDERAL SYSTEM (7th ed. 2015).
5 Justice Alito was born in Trenton, New Jersey. SUPREME COURT OF THE UNITED STATES, https://www.supremecourt.gov/about/biographies.aspx (last visited Mar. 4, 2020). He began his career as a law clerk, then became assistant district attorney for the district of New Jersey before assuming multiple positions at the Department of Justice. Id. Before his nomination for the Supreme Court, he spent 16 years as a judge on the U.S. Court of Appeals for the Third Circuit. In 2005, President George W. Bush chose Alito to replace retiring Supreme Court Justice Sandra Day O’Connor.
6 From 1989 to 1993, West (the publisher of this Court’s decisions) published this Court’s single-judge decisions in tables in hard-bound volumes of West’s Veterans Appeals Reporter. Since 1993, West has published this Court’s single-judge decisions electronically only. I believe the Court should publish all its decisions in print form. See, e.g., Passaic Cty. Bar Ass’n v. Hughes, 401 U.S. 1003 (1971).
4
particularly since the Court’s adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet.App. 1 (2019). We cite decisions from our Court merely for their guidance and persuasive value.
III.
The appellant served on active duty in the U.S. Air Force from August 1987 to November 1995 as a medical service journeyman. R. at 1909 (DD Form 214). While on active duty, the appellant accidentally shot himself in the left knee while unloading his .357 magnum pistol. R. at 1987.
IV.
The appellant filed for VA benefits for his left knee injury in 2009, and is now service -connected for this condition. R. at 2045-54. The appellant has been provided multiple VA examinations since his application. The Court will only address the facts relevant to the issues that remain in dispute. There are numerous references to both knee injections and pain medications in the record. See R. at 1689, 1564, 116, 87, 51.
In November 2017, to comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the Board ordered a new VA examination. R. at 812-18. In January 2018, the appellant underwent a VA examination, wherein the examiner concluded: “Correia: There is no evidence of pain on passive range of motion testing of the right knee. There is no evidence of pain on non-weight bearing testing of the right knee. There is evidence of pain on non-weight bearing testing of the left knee.” R. at 791.
V.
In August 2018 the Board issued the decision on appeal addressing multiple ratings pertaining to the appellant’s left knee. R. at 4-12. The Board first noted that the appellant’s initial 10% rating effective before January 19, 2018, was based on a limitation of flexion. R. at 7. A higher rating was denied because the record did not demonstrate that the appellant’s left knee had flexion limited to 30 degrees. R. at 7. The decision then reflects a grant of 10% for limited extension of the left knee from February 23, 2010, to November 9, 2015, based on VA examinations performed on these dates. R. at 8. The Board then found that the appellant exhibited slight left knee instability, that warranted a separate 10% rating, but no higher. R. at 9.
5
appellant’s regular use of a knee brace throughout the appeal period was acknowledged, but the Board denied a higher rating for instability of the left knee because the evidence did not show “consistent reports of giving way and instability, as well as consistent medical evidence of decreased or diffuse joint stability or laxity in the knee.” R. at 9.
The Board then denied a rating higher than 40% effective from January 19, 2018, for the appellant’s limitation of extension. R. at 11. The Board relied on the January 2018 VA examination to support this determination.
VI.
A veteran may “be entitled to a higher evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss . . . including as due to pain.” Sharp v. Shulkin, 29 Vet.App. 26, 31-32 (2017) (citing 38 C.F.R. § 4.40). “A higher disability evaluation may also be awarded where there is a reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. (citing 38 C.F.R. § 4.45).
“The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C § 5103A(a). “In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1).
When the Secretary undertakes to provide a veteran with a VA medical examination or opinion, he must ensure that the examination or opinion is adequate, Barr v. Nicholson, 21 Vet.App. 303, 311 (2007), and his “obligation to schedule that examination during a flare is contingent upon the frequency and duration of flares in a specific case,” Sharp, 29 Vet.App. at 33. A VA joints examination that fails to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups, is inadequate for evaluation purposes. DeLuca v. Brown, 8 Vet.App. 202, 206-07 (1995).
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 veterans themselves.” Sharp, 29 Vet.App. at 34. The examiner must
6
also “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 (emphasis added) (internal quotation marks and alteration omitted). See Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (summarizing DeLuca and concluding that an examination was inadequate because it “did not discuss whether any functional loss was attributable to pain during flare-ups, despite noting the appellant’s assertions [thereof]”). A medical opinion that “cannot be provided without resort to speculation” is adequate when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not insufficient knowledge of the specific examiner.” Sharp, 29 Vet.App. at 36 (quoting Jones v. Shinseki, 23 Vet.App. 382, 390 (2010)).
For a VA joints examination to be adequate, the examination must, inter alia, portray the extent of functional loss and limitation due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, including with use and on flare-up, Mitchell, 25 Vet.App. at 44; DeLuca, 8 Vet.App. at 206-07 (1995), and “wherever possible, include the results of the range of motion testing described in the final sentence of [38 C.F.R.] § 4.59,” Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016), including testing the relevant joint “on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint,” 38 C.F.R. § 4.59 (2019).
“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 in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or bases serves not only to help a claimant understand what has been decided, but also to ensure that VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.).
VII.
The Court agrees with both parties that the Board erred in failing to ensure that the appellant was provided an adequate VA knee examination. None of the examinations adequately consider “information about the severity, frequency, duration, precipitating and alleviating factors” of flare-
7
ups or “estimate ‘per the veteran’ to what extent, if any, they affect functional impairment.” Sharp, 29 Vet.App. at 32, citing VA CLINICIAN’S GUIDE § 0.1 (March 2002)
.
The Court notes that the ameliorative effects of the appellant’s injections and medications are required to be addressed by the examiner under Sharp as these are “alleviating factors.” Id. The Court agrees with the appellant that the Board cannot take into account any ameliorative effects of medication as they are not contemplated by the DCs at issue here. See Jones v. Shinseki, 26 Vet.App. 56, 61 (2012); see also Appellant’s Brief at 20-22. Further, given that an examiner may estimate additional functional impairment, see Sharp, 29 Vet.App. at 32, an examiner may also provide a retroactive opinion regarding the existing data, see Chotta v. Peake, 22 Vet.App. 80 (2008). Remand is required for the Board to provide a medical opinion that adequately considers flare-ups.
The Court also concludes that the Board failed to ensure substantial compliance with its January 2018 remand order. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (it is substantial compliance with remand orders, not absolute compliance, that is required). The Board ordered an examination that complied with the Court’s holding in Correia. R. at 812-18. The examiner appears to have been confused by the Court’s holding in this case as he was not only required to consider whether the appellant had pain on various testing, but to what extent the appellant’s range of motion was limited as a result of pain. See R. at 791; see also Mitchell, 25 Vet.App. at 44; Correia, 28 Vet.App. at 169-70. Any examination provided on remand must also comply with Correia.
The Court also agrees with the parties that the Board failed to provide an adequate statement of reasons or bases for assigning a disability rating for the appellant’s limitation of extension. 38 U.S.C. § 7104(d)(1). It is unclear why it discontinued a rating as of November 8, 2015, when the Board acknowledged that this limitation of extension existed at the time of the November 2015 VA examination. See R. at 8.
Further, the Court agrees with the parties that the Board’s requirement of objective evidence of instability violated the holding in English v. Wilkie, 30 Vet.App. 347, 352-53 (2018). On remand, the Board is reminded that Diagnostic Code 5257 does not require objective evidence or that medical evidence should be favored over lay evidence when determining whether a compensable rating is warranted under this DC. See id.
8
Because the Court is remanding the matters on appeal, it will not address the appellant’s remaining arguments; the Court simply notes that multiple facets of this decision were unclear and the Board should clearly explain all its findings on remand. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). 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.”).
VIII.
For the foregoing reasons, that part of the August 23, 2018, Board decision on appeal is SET ASIDE and the matters are REMANDED for further development and readjudication.
DATED: April 20, 2020
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)

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