Veteranclaims’s Blog

September 11, 2021

Single Judge Application; Court’s decision in English v. Wilkie, 30 Vet.App. 347, 353 (2018), which held that the Board cannot categorically favor objective stability test results over lay reports of instability; Tedesco v. Wilkie, 31 Vet.App. 360, 367 (2019);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6477
JAMES A. HART, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran James A. Hart appeals through counsel an October 30,
2018, Board of Veterans’ Appeals (Board) decision denying an initial disability evaluation in
excess of 10% for a left knee disability and finding that it lacked jurisdiction over an appeal for an
effective date before May 5, 2012, for the assignment of a total disability evaluation based on
individual unemployability (TDIU). Record (R.) at 4-15.1 For the reasons that follow, the Court
will reverse the Board’s finding that it lacked jurisdiction over the matter of an earlier effective
date for the award of TDIU. The Court will also set aside the portion of the October 2018 Board
decision denying an increased initial evaluation for a left knee disability and remand that matter
for further development, if necessary, and readjudication consistent with this decision. The
balance of the appeal will be dismissed.
1 In addition, the Board denied entitlement to service connection for bilateral hip and shoulder disabilities.
R. at 6-11. Because Mr. Hart has not challenged that portion of the Board decision, the appeal as to those 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).
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I. FACTS
Mr. Hart served on active duty in the U.S. Navy from July 1965 to August 1970. R. at
3619-20.
In July 2009, Mr. Hart filed a claim seeking service connection for several conditions. R.
at 5713. He underwent a VA knee examination in June 2010. R. at 5599-601. The examiner
diagnosed left knee arthritis based on x-rays. R. at 5600. Mr. Hart reported symptoms of
weakness, stiffness, swelling, giving way, lack of endurance, locking, tenderness, subluxation, and
pain. R. at 5599. He also reported flareups occurring as often as daily and lasting all day, during
which his pain level is 8 out of 10 and he can’t cross his legs or squat. Id. Mr. Hart stated that his
knee “goes out sometimes” and that he has difficulty standing, walking, and sitting. Id. Range of
motion testing was within normal limits with no change after repetitive use. R. at 5600.
Additionally, the examiner conducted a series of stability tests, the results of which were all within
normal limits. Id.
A March 2011 VA treatment record documents Mr. Hart’s request for home adaptive
equipment. R. at 3405. Specifically, he stated that his knee pain made it difficult for him to get
in and out of the bathtub. Id.
In an August 2011 rating decision, a VA regional office (RO) granted service connection
for a left knee disability and assigned a single 10% evaluation for painful motion. R. at 5471-76.
Later than month, Mr. Hart filed a Notice of Disagreement with the evaluation assigned for his left
knee disability, R. at 5452, as well as a claim for a TDIU, R. at 5468. In February 2013, the RO
issued a Statement of the Case (SOC) continuing, among other things, the 10% evaluation assigned
for Mr. Hart’s left knee disability. R. at 5085-112. Mr. Hart filed his Substantive Appeal the same
month, reiterating his assertion that he “cannot cross [his] legs, squat, [or] run” and reporting
“trouble getting in and out of a car.” R. at 5073.
Mr. Hart underwent an additional VA examination in January 2015. R. at 3747-61. The
examiner documented Mr. Hart’s report that “[h]e uses a knee brace when he is walking outside
and . . . a cane for stability.” R. at 3750. He reported pain “every time he gets up” and “with
getting in and out of vehicle[s].” Id. The examiner noted that a friend drove Mr. Hart to his
examination because of Mr. Hart’s knee discomfort. Id. Mr. Hart reported that his pain “is worse
with standing up or walking long distances.” R. at 3751. On range of motion testing, flexion was
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limited to 110 degrees, but the examiner explained that finding was “normal for the veteran[‘]s age
of 68.” Id. Joint stability testing was performed, but no instability was shown. R. at 3756.
In October 2015, the Board remanded Mr. Hart’s increased evaluation claim to obtain an
additional VA examination. R. at 2665-66. The TDIU matter was also remanded as inextricably
intertwined with the left knee evaluation. R. at 2665.
In January 2016, Mr. Hart filed an additional TDIU claim form, asserting that he has
difficulty “getting into cars[] or standing for long periods of time.” R. at 2534. He reported
“constant” use of his cane and knee brace, as well as knee swelling. Id.
That same month, Mr. Hart underwent his third VA knee examination. R. at 204-16. He
reported daily pain and stiffness, R. at 207, which he treated with prescription and over-the-counter
medication as necessary, R. at 206. He was experiencing a flareup during the examination, which
he reported manifests as increased pain and stiffness lasting “a few hours.” R. at 207. On range
of motion testing, flexion was limited to 110 degrees, but the examiner again explained that finding
was normal for Mr. Hart’s age and did not contribute to functional loss. R. at 208. However, there
was pain on flexion, including with weight bearing, and crepitus. R. at 209. The examiner opined
that there was no history of subluxation or instability, R. at 211, and stability testing was normal,
R. at 212-13. Mr. Hart reported using a cane for stability, R. at 206, but the examiner stated,
without clarification, that cane use was “not specifically for his knees,” R. at 214.
In November 2016, the RO granted entitlement to TDIU effective March 5, 2012, the date
he met the requirements for a schedular TDIU. R. at 2437-41. In February 2017, Mr. Hart filed
an NOD with the TDIU effective date, noting that the RO failed to consider whether he was entitled
to TDIU on an extraschedular basis prior to March 5, 2012. R. at 2398.
In the October 2018 decision on appeal, the Board found that the RO was continuing to
work on Mr. Hart’s appeal for an earlier effective date for the award of TDIU. R. at 6. Therefore,
it found that “it would be premature for the Board to address” that matter because it lacked
jurisdiction. Id. As for Mr. Hart’s left knee disability, the Board acknowledged his reports “that
his knee ‘gives way’ at times,” but found “objective testing specifically designed to determine
whether instability was present more probative than [Mr. Hart’s] assertions of giv[ing] way.” R.
at 13. Consequently, the Board found that a separate 10% evaluation for instability was not
warranted. Id. The Board further found there was no other evidence suggesting an increased
evaluation for the knee disability was warranted. R. at 14. This appeal followed.
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II. JURISDICTION AND STANDARD OF REVIEW
Mr. Hart’s appeal is timely, and the Court has jurisdiction to review the October 2018 Board
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).
The Board’s determination regarding 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 Court exercises
de novo review over the Board’s jurisdiction determinations. Meakin v. West, 11 Vet.App. 183,
197 (1998).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its degree-of-disability determination with an adequate statement of reasons or bases
that enables the claimant to understand the precise basis for that determination and facilitates
review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze
the credibility and probative value of evidence, account for evidence that 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). The Board must explain its reasons for discounting favorable evidence, discuss all issues
raised by the claimant or evidence of record, and discuss all provisions of law and regulation where
they are made “potentially applicable through the assertions and issues raised in the record.”
Thompson v. Gober, 14 Vet.App. 187, 188 (2000); see Robinson v. Peake, 21 Vet.App. 545, 552
(2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009); Schafrath v.
Derwinski, 1 Vet.App. 589, 592 (1991).
III. ANALYSIS
A. Jurisdiction over TDIU Effective Date Appeal
Mr. Hart argues that the Board erred in determining that it lacked jurisdiction over his
TDIU effective date appeal. Appellant’s Brief (Br.) at 7-11. Specifically, he argues that the facts
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in his case are similar to those in Harper v. Wilkie, 30 Vet.App. 356 (2018). Id. at 9. In Harper,
the Court held that, because a claim for TDIU is part and parcel of an increased evaluation claim,
when an appellant is granted TDIU during the pendency of an increased evaluation appeal, TDIU
nonetheless remains part and parcel of the increased evaluation claim unless the appellant has
received the highest rating possible for the whole period on appeal. 30 Vet.App. at 362. Mr. Hart
argues that, consistent with Harper, he was not required to separately appeal for an earlier effective
date for his TDIU, as it remained part and parcel of his pending appeal for an increased evaluation
for his left knee disability. Appellant’s Br. at 8-9. Consequently, he asks the Court to reverse the
Board’s finding that it lacked jurisdiction over the matter. Id. at 9. The Secretary concedes that
Harper controls the outcome here. Secretary’s Br. at 6-7.
The Court agrees that Harper is controlling precedent in this matter. Therefore, the Court
will reverse the Board’s finding that it lacked jurisdiction over Mr. Hart’s TDIU effective date
appeal. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate remedy
when the only permissible view of the evidence is contrary to the Board’s decision.”). On remand,
the Board must consider whether Mr. Hart is entitled to TDIU before May 5, 2012.
B. Increased Evaluation for Left Knee Disability
Mr. Hart argues that the Board erred in determining that his lay evidence of instability was
less probative than objective testing results that did not reflect instability. Appellant’s Br. at 11-14.He argues that the Board’s reasoning is contrary to this Court’s decision in English v. Wilkie,
30 Vet.App. 347, 353 (2018), which held that the Board cannot categorically favor objective stability test results over lay reports of instability.
Appellant’s Br. at 12. Mr. Hart argues that,
because the Board did not find his lay testimony incredible, it provided inadequate reasons or bases
for finding objective testing more probative than his consistent lay reports of instability. Id. at 12-

He further argues that the Board’s reasons or bases do not explain the basis for its determination
that his functional impairment, such as difficulty getting in and out of vehicles, was not consistent
with flexion impairment greater than that demonstrated on range of motion testing. Id. at 14-16.
The Secretary disputes these contentions. Secretary’s Br. at 7-14.
As a preliminary matter, in the October 2018 decision on appeal the Board acknowledged
that Mr. Hart reported symptoms of instability and did not explicitly find those statements not
credible. See R. at 13. Therefore, the Court concludes that the Board implicitly found him
credible. See Miller v. Wilkie, _ Vet.App. _, No. 18-2796 (Jan. 16, 2020), at *8 (“When the
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Board has made its decision without finding that the veteran is not competent to report symptoms
and nothing suggests that the Board failed to review the evidence at issue, we may reasonably
conclude that it implicitly found the veteran credible.”).
As for the relevance of Mr. Hart’s lay statements, the Secretary argues that, regardless of
Mr. Hart’s sincerely held belief that he experiences instability, the Board properly determined that
objective testing that did not show instability is more probative. Secretary’s Br. at 7-12. He argues
that, unlike in English, the Board here did not categorically find objective evidence of stability
superior to lay evidence of instability but, rather, “found that the specific examinations and
objective evidence therein provided more probative evidence.” Id. at 9 (emphasis added). In other
words, the Secretary argues that, because the Board identified the precise objective testing
employed in this matter, English is no longer controlling. Id. The Secretary does not explain why
specifying that the testing employed was designed to detect instability is sufficient to permit the
Board to, without more, favor objective test results over contradictory—but credible—lay
evidence. Indeed, the Court rejected this argument in Tedesco v. Wilkie, 31 Vet.App. 360, 367 (2019).
Additionally, both the January 2015 and January 2016 VA examiners noted that Mr. Hart
uses assistive devices—a knee brace and a cane—for stability. R. at 214, 3757. The Board did
not address this favorable evidence. See R. at 12-13; see also Appellant’s Br. at 13. The Secretary
argues that the examiners were merely recording Mr. Hart’s lay statements, not making medical
determinations that the stability devices were necessary. Secretary’s Br. at 11. Moreover, the
Secretary argues, the January 2016 examination suggests that the instability “was not due to his
knees specifically.” Id. Therefore, the Secretary contends, those portions of the examination
reports were not favorable evidence that the Board was required to discuss.
As regards Mr. Hart’s lay statements, the Board noted only that he “has reported that his
knee ‘gives way’ at times.” R. at 13. The Board did not discuss his use of assistive devices, which
the VA examiners characterized as “regular.” R. at 214, 3757. The need to use assistive devices
for stability is favorable evidence that the Board must consider. See Caluza, 7 Vet.App. at 506.
The Secretary’s attempt to make up for the Board’s deficient analysis is nothing more than a posthoc
rationalization that the Court will not accept. See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir.
2002) (“‘[C]ourts may not accept appellate counsel’s post-hoc rationalizations for agency action.'”)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)); Evans v.
7
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.”).
As noted above, the Board must explain its reasons for discounting favorable evidence.
See Thompson, 14 Vet.App. at 188 (2000). Because the Board failed to discuss favorable evidence
that Mr. Hart uses assistive devices to manage knee instability and to adequately address lay
evidence of instability, the Court holds that the Board failed to provide adequate reasons or bases
for its determination that Mr. Hart was not entitled to additional compensation for his left knee
disability. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506. Accordingly, the Court
concludes that remand is warranted. 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”).
Given this disposition, the Court need not address Mr. Hart’s remaining arguments, which
could not result in a remedy greater than remand. However, in accordance with Kutscherousky v.
West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), Mr. Hart is free to submit any additional
arguments and evidence on remand, including any additional arguments he made to this Court; 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.
IV. CONCLUSION
Upon consideration of the foregoing, the portion of the October 30, 2018, Board decision
finding that the Board lacked jurisdiction over the appeal for an earlier TDIU effective date is
REVERSED; the portion of the October 2018 Board decision denying an increased evaluation for
a left knee disability is SET ASIDE; and the TDIU and increased evaluation matters are
REMANDED for further development, if necessary, and readjudication consistent with this
decision. The balance of the appeal is DISMISSED.
DATED: January 31, 2020
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Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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