Veteranclaims’s Blog

August 17, 2021

Single Judge Application; veteran’s competence and credibility; Smith v. Wilkie, 32 Vet.App. 332, 399 (2020), where we found a violation of fair process where a veteran relied to his detriment on VA language in prior Board remands that reasonably led him to conclude that the Board had favorably resolved the matter of his competence and credibility;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1655
ANNIE L. ADAMS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Annie L. Adams, through counsel, appeals a January 7,
2020, Board of Veterans’ Appeals decision that denied a disability rating above 10% for serviceconnected
left and right knee strains. This appeal is timely, the Court has jurisdiction to review the
Board’s decision, and single-judge disposition is appropriate. See U.S.C. §§ 7252(a), 7266(a);
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board erred in finding that the duty to assist was met.
Because the medical examinations relied on by the Board did not address the veteran’s condition
during a period of flareup and the Board inadequately explained its rejection of the lay evidence,
we will reverse the Board’s implicit determination that the duty to assist had been met, set aside
the Board’s decision, and remand the matter for further proceedings.
I. BACKGROUND
Ms. Adams served on active duty from January 1988 until July 1991. Record (R.) at 1317.
In 2012, she filed a VA disability compensation claim based on left and right knee disabilities. R.
at 222. In August 2013, VA provided her with a medical examination. R. at 1971-77. The next
month, VA granted the veteran’s claim and awarded her a 10% disability rating. R. at 1792.
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In 2014, Ms. Adams filed a claim for an increased disability rating. R. at 1634-35. She
stated that her knees, which had become more painful and less functional since 2013, were
affecting her occupational and daily activities. R. at 1059. She also told VA that, although her
“pain and motion” difficulties were “not the same on a daily basis,” there were days when her pain
was so bad that she could “hardly walk or extend” her knees. R. at 1030.
In 2015, VA provided her another medical examination. R. at 1228-39. The examiner noted
that the veteran reported periods of painful flareups with “difficulty standing or walking for long
periods of time and difficulty with bending and squatting.” R. at 1238. But the examination was
not conducted during a flareup and the examiner stated that the examination “neither supports nor
contradicts” the veteran’s account of functional loss during flareups. R. at 1232.
In 2016, the Board remanded the veteran’s claim for VA to obtain yet another medical
examination. R. at 1003-15. Noting the veteran’s account of painful flareups, the Board found that
“the record indicates a possible worsening of [the veteran’s] condition since May 2015,” and that
a “new VA examination is warranted” to address the veteran’s condition. R. at 1010. The Board
also said that remand was needed for VA to obtain a medical examination that complied with this
Court’s decision in Correia v. McDonald, 28 Vet.App. 158, 168 (2016). Id.
VA provided Ms. Adams with the new medical examination in 2017. R. at 234-42. The
examiner noted that the veteran reported functional loss and that her pain “became intense and
worse in [January] 2017.” R. at 235. But the examiner did not provide any Correia findings, and
he stated that his “examination is neither medically consistent or inconsistent with the [v]eteran’s
statements describing functional loss with repetitive use over time.” R. at 237.
In 2018, the Board remanded the veteran’s claim for compliance with the terms of its 2016
remand order. R. at 206-07. The Board stated that, in its “December 2016 remand, the RO was to
schedule the [v]eteran for an examination of her left and right knee disabilities which included
range of motion findings for active motion, passive motion, weight-bearing, and nonweightbearing
in accordance with the holding in Correia.” R. at 206. The Board found, however, that
“[t]he May 2017 VA examination for knees does not include these findings or an explanation as
to why they may not be ascertainable.” R. at 206-07. The Board made clear that, on remand, “[t]he
examiner must . . . consider whether there is likely to be additional range of motion loss as a result
of pain, weakness, fatigability, or incoordination, or during flare-ups.” R. at 207.
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In 2019, VA provided Ms. Adams with another medical examination. R. at 80-88. During
this examination, Ms. Adams did not report any flareups or functional loss. R. at 81. She told the
examiner that she had taken pain medication, recently received a steroid injection, and was feeling
“a little better.” R. at 80. The examiner stated that “[t]he examination is neither medically
consistent or inconsistent with the [v]eteran’s statements describing functional loss with repetitive
use over time. R. at 82, 83. She noted that “flareups” were “[n]ot applicable.” R. at 83.
In the decision here on appeal, the Board denied higher disability ratings for the left and
right knee conditions. R. at 5-11. Relying on the findings in the 2013, 2015, 2017, and 2019 VA
examinations, the Board found that the veteran’s limitation of motion did not more nearly
approximate the higher, 20% disability rating under the relevant diagnostic code (DC). R. at 9-10.
The Board noted the veteran’s assertions of “pain and other symptoms” but found that “the
objective medical evidence is of greater probative value” than the veteran’s lay statements. R. at 10.

The Board also found that, “[e]ven considering the [v]eteran’s subjective complaints of pain
and other symptoms . . . there is no evidence of flexion limited to 30 degrees or extension limited
to 15 degrees such that higher or separate ratings would be warranted based on limitation of
motion.” Id. Ms. Adams now appeals this Board decision.
II. ANALYSIS
Ms. Adams argues that the Board erred about the duty to assist because the 2013, 2105,
2017, and 2019 medical examinations relied on by the Board do not include evidence related to
her range of motion during flareups. She also contends that the 2019 examination is inadequate
because the examiner did not consider the ameliorating effects of her medication.
The duty to assist includes the duty to provide an adequate medical examination. A VA
examination is adequate when it describes a disability in enough detail so that the Board’s
“evaluation of the claimed disability will be a fully informed one.” Ardison v. Brown, 6 Vet.App.
405, 407 (1994); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (holding that an
adequate examination must not only contain data and conclusions, but must also provide “a
reasoned medical explanation connecting the two”). As we explained in Correia, the Secretary
requires that “certain range of motion testing be conducted whenever possible in cases of joint
disabilities.” 28 Vet.App. at 168. “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
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why that is so.”Id. at 170.Limitation of flexion of the knee generally is rated under 38 C.F.R. §
4.71a, DCs 5260 (flexion) and 5261 (extension). Ms. Adams has been awarded a 10% disability
rating based on those DCs and 38 C.F.R. § 4.59 (2021), which states that painful joints are entitled
to at least the minimum compensable rating for the joint. R. at 8. To receive a 20% rating, the
veteran must show that her leg flexion is limited to 30 degrees or that her leg extension is limited
to 15 degrees. 38 C.F.R. § 4.71a, DC 5260, 5261 (2021). In determining limitation of motion, the
Board must consider pain that results in functional loss and consider the veteran’s condition during
flareups. Sharp v. Shulkin, 29 Vet.App. 26, 34 (2017); Mitchell v. Shinseki, 25 Vet.App. 32, 43
(2011); 38 C.F.R. §§ 4.40 (2021) (functional loss due to pain on movement and diminished
excursion, strength, speed, coordination, and endurance) and 4.45 (abnormal extent of movement,
weakened movement, excess fatigability, and incoordination, as well as pain on movement,
instability of station, disturbance of locomotion, interference with sitting, standing, and weightbearing).
We review for clear error the Board’s determination that the duty to assist has been met.
Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (Board’s determination whether the Secretary has
fulfilled his duty to assist generally is a finding of fact that the Court reviews under the “clearly
erroneous” standard of review); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (‘”A
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.”‘ (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).
In addition, the Board must support its determinations with a statement of reasons or bases
that is adequate to enable an appellant to understand the precise basis for its decision, as well as to
facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527
(1995). To comply with this requirement, the Board must analyze the credibility and probative
value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide
the reasons for its rejection of any 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).
We find that the Board clearly erred in implicitly determining that the duty to assist had
been met. As the Board found in its 2016 and 2018 remand orders, the 2013, 2015, and 2017
medical examinations do not address the veteran’s range of motion (ROM) limitation during a
flareup or the extent of her functional loss and thus do not include enough information to inform
5
the Board’s decision on that question. See R. at 1877 (August 2013 VA examiner declining to
“provide degree of additional ROM loss”); R. at 1232-33 (March 2015 VA examiner stating that
“additional limitation varies and attempting to estimate the degree of additional ROM loss would
require resorting to mere speculation”); R. at 237-38 (May 2017 VA examiner stating that he could
not offer an opinion on additional ROM loss without resorting to mere speculation because Ms.
Adams was “not examined” after repetitive use over time); see also R. at 206-07 (2018 Board
remand order); 1010 (2016 Board remand order).
Yet the 2019 examination does not supply any information about the veteran’s functional
loss or flareups. The examiner stated that “flareups” were “[n]ot applicable” because the veteran
denied them during the examination. R at 83. She did not offer an opinion about any past flareup
or functional loss and she stated that her “examination is neither medically consistent or
inconsistent with the [v]eteran’s statements describing functional loss with repetitive use over
time.” R. at 82, 83.
Moreover, the 2019 examiner noted that the veteran had received steroid injections and
taken pain medication and was feeling better, but she offered no opinion about the severity of the
veteran’s condition without the ameliorating effects of that treatment and medication. Because DCs
5260 and 5261 do not contemplate the effects of medication, the Board needed information about
the veteran’s range of motion when her condition was not improved by medication. See Jones v.
Shinseki, 26 Vet.App. 56, 61 (2012) (holding that the Board may not consider the ameliorative
effects of medication when those effects are not explicitly contemplated by the rating criteria); 38
C.F.R. § 4.71a, DCs 5260 and 5261. The examiner’s failure to provide that information undermines
the adequacy of her examination. See Ardison, 6 Vet.App. at 407.
The record, thus, lacks a medical opinion that would provide the Board with information
about the state of the veteran’s disability during periods of functional loss or flareup and without
the ameliorating effects of medication. Because that information was necessary for the Board to
decide the appropriate disability rating for the veteran’s condition, the examinations of record do
not satisfy the duty to assist. See id. The Board’s reliance on those examinations is therefore clearly
erroneous and its implicit determination that the duty to assist was met will be reversed. See Nolen,
14 Vet.App. at 184.
The Board also inadequately addressed the veteran’s lay evidence. The Board rejected the
veteran’s assertions of “pain and other symptoms” because “the objective medical evidence is of
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greater probative value” than the veteran’s lay statements and, “[e]ven considering the Veteran’s
subjective complaints of pain and other symptoms . . . there is no evidence of flexion limited to 30
degrees or extension limited to 15 degrees such that higher or separate ratings would be warranted
based on limitation of motion.” Id. But because none of the medical examinations addressed the
veteran’s condition during a flareup, there was no objective medical evidence to weigh against the
veteran’s lay statements. And, contrary to the Board’s statement, the veteran’s contention of pain
limiting her ability to walk could have provided evidence of flexion and extension limitation to
warrant a higher disability rating. See 38 C.F.R. § 4.71a, DCs 5260 (flexion) and 5261 (extension).
Remand is warranted for the Board to address the veteran’s lay statements in an adequate statement
of reasons or bases. See Caluza, 7 Vet.App. at 506.
Remand is thus warranted for the Board to provide both a medical examination that
satisfies the duty to assist and an adequate statement of reasons or bases. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (stating that remand is appropriate “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 Hensley v. West, 212 F.3d 1255, 1263-64
(Fed. Cir. 2000) (when a court of appeals reviews a lower court’s decision, it may remand it if the
previous adjudicator failed to make findings of fact essential to the decision).
To provide guidance to the Board on remand, we note two additional matters. See Quirin
v. Shinseki, 22 Vet.App. 390, 396 (2009). First, the Board inadequately addressed the veteran’s
denial of flareups at the 2019 examination. It is not clear from the Board’s decision whether the
veteran’s denial showed that the flareups never occurred, whether the condition was temporarily
ameliorated by medication, or whether staged ratings would be warranted. The Board should
address this inadequacy on remand. Second, on remand, the Board should consider our decision in
Smith v. Wilkie, 32 Vet.App. 332, 399 (2020), where we found a violation of fair process where a
veteran relied to his detriment on VA language in prior Board remands that reasonably led him to
conclude that the Board had favorably resolved the matter of his competence and credibility
.
Although Smith had not issued when the Board decided Ms. Adams’s case, its holding is relevant
here and should be considered by the Board on remand. See Quirin, 22 Vet.App. at 396; see also
Davis v. McDonough, _ Vet.App. , , No. 18-4371, 2021 WL 1975899 at *8 (May 18,
2021) (“In circumstances where there has been a new legal development between the issuance of
a Board decision and the submission of a case to the Court, we have the discretion not to address
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the effect of that development and instead remand for the Board to consider it in the first
instance.”).
Because the claim is being remanded, the Court need not address Ms. Adams’s additional
arguments that would lead to no broader remedy than a remand. See Mahl v. Principi, 15 Vet.App.
37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze
and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
In pursuing her claim on remand, the veteran will be free to submit additional argument and
evidence as to the remanded matter, and she has 90 days to do so from the date of the postremand
notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider any such
evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
II. CONCLUSION
For these reasons, the Board’s January 7, 2020, decision is SET ASIDE and the matters are
REMANDED for further proceedings.
DATED: July 2, 2021
Copies to:
Christopher M. Toms, Esq.
VA General Counsel (027)

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