Veteranclaims’s Blog

October 14, 2021

Single Judge Application; Tedesco v. Wilkie; implicit bias against lay evidence; The Board’s analysis is substantially similar to the Board’s analysis in Tedesco v. Wilkie, where the Board noted an appellant’s reports of knee instability but found medical evidence more probative. 31 Vet.App. 360, 367 (2019). We ultimately remanded that claim, stating that “[t]he Board fail[ed] to explain why the medical findings are more probative, other than to assert that the ‘specific medical tests . . . are designed to reveal instability . . . of the joints.'” Id. Just as in Tedesco, the Board’s statement here, that “[t]he DBQs were completed by medical professionals who formulated their conclusions based on a physical examination, review of the record, and interview of the Veteran,” fails to suggest any actual reasons or bases for finding the lay statements outweighed by “significant objective evidence,” other than an implicit bias against lay evidence and a preference for medical evidence. R. at 8. The Board also failed to explain why it considered the appellant’s lay statements “generalized.”;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2383
BERNARD W. GREENE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Senior Judge: The appellant, Bernard W. Greene, through counsel, appeals a February 27, 2020, Board of Veterans’ Appeals (Board) decision in which the Board denied his claim for an increased disability rating for a lateral meniscectomy of the left knee, and residuals thereof. Record of Proceedings (R.) at 4-11. This appeal is timely, and the Court has jurisdiction to review the Board’s 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). Because the Board misconstrued the rating criteria established under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from June 1965 to April 1969. R. at 990. In May 1969, after he was discharged from service, VA granted the appellant service connection for a left knee disability (lateral meniscectomy of the left knee) and assigned a
1 Judge Schoelen is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 04-21 (Jan. 4, 2021).
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noncompensable rating under DC 5259. R. at 1070, 1076. In June 2005, the appellant filed an increased-rating claim for his left knee disability and underwent a VA examination in October 2005. R. at 945-47, 958-67. He asserted that his pain had increased since his initial rating decision and reported “clicking and grinding,” locking, and instability. R. at 945-46. VA increased the appellant’s disability rating to 10%, but changed his DC to 5299-5257 and assigned an effective date of June 14, 2005. R. at 938-44.
In May 2008, the appellant complained of a locking feeling in his left knee, asserting that his condition was getting “progressively worse.” R. at 918. In June 2008, he filed an increased-rating claim for his left knee disability. R. at 903. In September 2008, VA determined that the appellant’s disability rating should be continued at 10%, but upon seeing evidence of osteoarthritis in the left knee, VA again chose a different DC under which to rate the appellant’s condition, this time choosing DC 5099-5010. R. at 905-08.
Following development, a December 2014 Board decision denied a compensable rating for his left knee disability under DC 5257 and an increased rating under DC 5010, but granted a separate 10% disability rating under DC 5259 for removal of semilunar cartilage with symptomatic residuals. R. at 663-78.
In a March 2016 memorandum decision, this Court remanded the case because the Board provided inadequate reasons or bases for denying the appellant compensation under DC 5257. R. at 577-81. On remand, the Board again denied the appellant a disability rating under DC 5257. R. at 107-18. The Board found that DC 5257 requires medical expertise to determine whether a veteran has “recurrent subluxation” or “lateral instability”; that no objective medical evidence of such symptoms existed here; and the appellant’s lay assertions of “locking” and “giving way” were not enough to warrant a separate disability rating. R. at 115.
On appeal in February 2019, the Court vacated the Board decision and remanded the matter for further adjudication, finding that the Board had violated English v. Wilkie, 30 Vet.App. 347 (2018), by categorically finding the appellant’s lay statements less probative than medical evidence of record without providing adequate reasons or bases. R. at 86-90.
In the February 2020 decision on appeal, the Board again denied the appellant a disability rating higher than 10% under DC 5257. R. at 4-11. In reaching this conclusion, the Board noted the appellant’s “competent and credible reports of left knee instability (locking and giving way),” but found that the appellant’s reports were “generalized.” R. at 8. The Board then stated that by
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contrast, the March 2010, March 2012, and October 2016 examinations found no instability, and “objective testing at the March 2012 and October 2016 examinations showed no lateral instability.” Id. Thus, the Board stated that it had “no basis to contradict the conclusions made by the examiners” and that although the appellant’s lay reports had been considered as evidence of left knee instability under DC 5257, they were outweighed by “significant objective evidence indicating no such instability.” Id. This appeal followed.
II. ANALYSIS
DCs 5256 through 5263 compensate a veteran for knee and leg disabilities. Specifically at issue here, DC 5257 entitles a veteran to disability compensation when knee impairment is evidenced by either “recurrent subluxation” or “lateral instability” at the “slight” (10%), “moderate” (20%), or “severe” (30%) level; DC 5258 provides compensation for dislocated semilunar cartilage with “frequent episodes of ‘locking,’ pain, and effusion into the joint” at the 20% level; and DC 5259 provides a 10% disability rating for “symptomatic” removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5257, 5258, 5259 (2021). The appellant currently has a 10% disability rating under DC 5259. The appellant also has a 10% disability rating under DC 5010, which states that arthritis due to trauma will be rated in the same manner as degenerative arthritis under DC 5003 (which provides that degenerative arthritis will be rated based on limitation of motion under the appropriate DCs for the specific joint involved). 38 C.F.R. § 4.71a, DC 5003, 5010.
The Court has determined that DC 5257 does not “speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC.” English, 30 Vet.App. at 349. Further, “[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [DC 5257] without supporting its conclusion with an adequate statement of reasons or bases.” Id.
Additionally, pursuant to 38 U.S.C. § 5103A, the Secretary has a duty to assist claimants in developing and obtaining relevant evidence needed to substantiate their claims. The Secretary’s duty to assist includes “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); see also Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Board’s findings as to whether the
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Secretary has satisfied his duty to assist are reviewed by the Court under the “clearly erroneous” standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007).
The appellant argues that the Court should reverse the Board’s finding that the appellant was not entitled to a separate disability rating under DC 5257 because the Board, in direct contravention of English, categorically assigned more weight to medical evidence of record than to the appellant’s lay statements. Appellant’s Brief (Br.) at 6. The appellant asserts that “at a minimum, remand is required for the Board to provide a legally valid and adequate explanation of its weighing of the evidence.” Id. In the alternative, the appellant contends that the Board failed to ensure compliance with its duty to assist because it found the lay evidence “generalized”; thus, the appellant asserts that the Court should vacate the decision on appeal and remand the matter for the Board to “obtain a VA medical examination that provides the Board with sufficient information about the [appellant’s] left knee disability.” Id. at 6, 15-19.
The Secretary disagrees that the Board violated English and argues that, as finder of fact, the Board had the discretion to weigh all the evidence of record and assign probative value accordingly. Secretary’s Br. at 4-8. The Secretary also asserts that the Board satisfied its duty to assist and that despite its finding of the lay evidence being “generalized,” the VA examinations of record were adequate because all examiners performed standard testing that specifically determined that no joint instability was present in the appellant. Id. at 9-10.
In the decision on appeal, the Board noted the Court’s remand instructions for complying with English and found the appellant’s reports of left knee instability (locking and giving way) “competent and credible.” R. at 8. Despite this finding, the Board found the appellant’s reports of left knee instability “generalized,” and “[b]y contrast, neither the March 2010, March 2012, nor October 2016 examiners found instability, and objective testing at the March 2012 and October 2016 examinations showed no lateral instability.” Id. Invoking Colvin v. Derwinski’s prohibition against the Board using its own unsubstantiated medical conclusions, the Board found that it had “no basis to contradict the conclusions made by the examiners.” Id. (citing 1 Vet.App. 171, 175 (1991). Thus, the Board stated that “the [appellant’s] lay reports have been considered as evidence with respect to left knee instability under [DC] 5257 but are outweighed by significant objective evidence indicating no such instability.” Id.
After considering the parties’ arguments and the record, the Court agrees with the appellant that remand is warranted. Despite the Board’s explicit finding that the appellant’s reports of left
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knee instability were competent and credible, the Board implicitly treated the medical evidence as categorically more probative. The appellant’s principal brief best describes the Board’s error:
In concluding that it had no “basis to contradict” the medical evidence of record, [the Board] implicitly found that it had no reason to accept the Veteran’s statements because, even though credible, they were not also supported by medical evidence. Yet such treatment assumes that medical evidence is categorically more probative than lay reports of instability, which is legally improper. See English, 30 Vet.App. at 349.
Appellant’s Br. at 13 (citation omitted). The Court agrees that this assumption is the fatal flaw with the Board’s analysis.
The Board’s analysis is substantially similar to the Board’s analysis in Tedesco v. Wilkie, where the Board noted an appellant’s reports of knee instability but found medical evidence more probative. 31 Vet.App. 360, 367 (2019). We ultimately remanded that claim, stating that “[t]he Board fail[ed] to explain why the medical findings are more probative, other than to assert that the ‘specific medical tests . . . are designed to reveal instability . . . of the joints.'” Id. Just as in Tedesco, the Board’s statement here, that “[t]he DBQs were completed by medical professionals who formulated their conclusions based on a physical examination, review of the record, and interview of the Veteran,” fails to suggest any actual reasons or bases for finding the lay statements outweighed by “significant objective evidence,” other than an implicit bias against lay evidence and a preference for medical evidence. R. at 8. The Board also failed to explain why it considered the appellant’s lay statements “generalized.” Although it is the duty of the Board to weigh evidence in the first instance, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that as finder of fact, the Board has the duty to weigh the evidence in the first instance); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board’s decision only if it is clearly erroneous), the Board cannot simply label an appellant’s statements as “generalized” as a way to defer to objective testing. This too runs afoul of Tedesco and English.
Additionally, the Court stated in English that “when assessing whether lateral knee instability is the type of symptom about which a lay person is competent to testify, [the Board] must remain cognizant of the prohibition on making independent medical judgments.” English, 30 Vet. App. at 353 (citing Colvin, 1 Vet.App. at 175). The statement by the Board here that it had “no basis to contradict the conclusions made by the examiners,” followed by citation to Colvin,
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evidences an attempt to avoid any Colvin violations. Though the Court appreciates the Board’s attempt to comply, the Board has inadvertently used Colvin as justification for the very thing English counsels against. The Board cannot use Colvin to simply defer to medical evidence and to excuse failure to weigh the evidence robustly. Accordingly, remand is required for an adequate statement of reasons or bases and compliance with English and Tedesco. 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 will not address the other arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him”). The appellant is free on remand to submit additional evidence and argument, including the arguments raised in her briefs to this Court, 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, the February 27, 2020, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: July 1, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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