Veteranclaims’s Blog

October 21, 2021

Single Judge Application; English, 30 Vet.App. at 352-53; the Board must explain what it understands the terms “slight” and “moderate” in DC 5257 to mean so that appellant will understand why he was evaluated as he was, and the Court can review the Board’s decision; the Board focused on “objective evidence” in the VA medical opinions to support its conclusion that appellant’s instability was only “slight.”35 We can’t tell whether the Board faithfully applied English v. Wilkie or merely recited its holding concerning the lack of a requirement of objective evidence. On remand, the Board must ensure that it does not inappropriately downgrade evidence of instability merely because it is subjective. We stress again that it is inappropriate to categorically favor objective evidence of instability over subjective evidence of that condition. English, 30 Vet.App. at 352-53;

Filed under: Uncategorized — Tags: — veteranclaims @ 3:57 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6284
WALTER L. WILLIAMS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Walter L. Williams served the Nation honorably in the United
States Army. In this appeal, which is timely and over which the Court has jurisdiction,1 he contests
a July 21, 2020, decision of the Board of Veterans’ Appeals that (1) denied him a disability rating
greater than 10% for residuals of a left knee injury with chondromalacia and (2) granted a 10%
disability rating, but no higher, for left knee instability.2 Because the Board did not provide a
statement of its reasons or bases sufficient to allow meaningful judicial review, we will set aside
the Board’s decision and remand this matter for further proceedings.
I. ANALYSIS
As a preliminary matter, the Court thanks counsel for both parties for the excellent briefing
in this appeal. It was helpful to the Court. Unfortunately, as we discuss below, the Board’s failure
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 5-16. The Board’s grant of a 10% disability rating for left knee instability is a favorable finding we
may not review. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also remanded appellant’s claims
for a disability rating greater than 10% for residuals of a left thumb fracture, as well as a total disability rating based
on individual unemployability before September 23, 2013. The remanded matters are not before the Court. See
Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
2
to discuss certain critical matters prevents meaningful judicial review. So, we will remand this
matter without resolving many of the disputes the parties briefed so well.
A. The Legal Landscape
The Board’s assessment of a claimant’s degree of disability is a finding of fact the Court
reviews for clear error.3 We may overturn the Board’s finding only if there is no plausible basis in
the record for the Board’s decision and we are “‘left with the definite and firm conviction'” that the
Board’s decision was in error.4
The Court also reviews the Board’s determinations about the adequacy of medical opinions
for clear error.5 A medical opinion is adequate when it is “based upon consideration of the
veteran’s . . . medical history and examinations and also describes the disability in sufficient detail”
so that the Board’s “evaluation of the claimed disability will be a fully informed one.”6 It is the
factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes
probative value to a medical opinion.”7
As with all its findings on a material issue of fact and law, the Board must support its
decision with an adequate statement of its reasons or bases that enables a claimant to understand
the precise bases for the Board’s decision and facilitates review in this Court.8 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.9 If the Board failed to do so, remand is appropriate.10
3 See Tedesco v. Wilkie, 32 Vet.App. 360, 362 (2019); Smallwood v. Brown, 10 Vet.App. 93, 97 (1997).
4 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)).
5 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see Gilbert, 1 Vet.App. at 52.
6 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
7 Nieves-Rodriguez, 22 Vet.App. at 304.
8 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
9 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
10 Tucker v. West, 11 Vet.App. 369, 374 (1998).
3
B. The Board’s statement of reasons or bases is inadequate.

  1. Residuals of a Left Knee Injury with Chondromalacia
    The Board relied heavily on a January 2020 VA medical opinion to deny appellant a
    disability rating greater than 10% for residuals of left knee injury with chondromalacia. 11
    Appellant contends that this medical opinion was inadequate. In response, the Secretary argues
    that the opinion was adequate. Indeed, the dispute about the adequacy of the January 2020 medical
    opinion is the principal focus of the parties’ arguments about the Board’s denial of an increased
    disability rating for appellant’s condition.
    Unfortunately, the Court is not in a position to resolve the parties’ dispute about the
    adequacy of the January 2020 VA medical opinion. The reason is that the Board did not explain
    its implicit finding that the January 2020 was adequate. This failure is significant for several
    reasons. First, the Board had previously determined that three other VA medical opinions (from
    October 2015, September 2010, and February 2010) were inadequate.12 The Board remanded
    appellant’s claim to obtain an adequate medical opinion.13 The Board never explains whether the
    January 2020 medical opinion VA obtained following the remand addressed the deficiencies in the
    medical evidence the Board had previously identified.
    Second, and related to the first point, the Board did not discuss why it apparently concluded
    that the January 2020 medical opinion was adequate with respect to our decision in Correia v.
    McDonald.14 In Correia, the Court held that for a VA joints examination to be adequate, the
    examination “must include the results of range of motion testing described in the final sentence of
    § 4.59.”15 Section 4.59 requires that the “joints involved should be tested for pain on both active
    and passive motion, in weight-bearing and non[-]weight-bearing and, if possible, with the range
    of the opposite undamaged joint.”16 In situations where the examiner is “unable to conduct the
    required testing or concludes that the required testing is not necessary, . . . he or she should clearly
    11 See R. at 8-9.
    12 R. at 1403. The Secretary agrees these medical opinions are not adequate. See Secretary’s Brief at 14.
    13 R. at 1403.
    14 28 Vet.App. 158 (2016).
    15 Id. at 169-70.
    16 38 C.F.R. § 4.59 (2021).
    4
    explain why that is so.”17 The parties dispute whether the January 2020 opinion complied with
    Correia, but the Board never addresses the issue.18 And that is particularly surprising because the
    Board’s earlier remand specifically concerned Correia.19
    Third, the Board did not explain why the January 2020 VA medical opinion was sufficient
    to rate appellant’s left knee disability during the entire period on appeal, even if we assumed it was
    adequate. Appellant sought an increased disability rating for his left knee condition in November
    2009.20 The claim has been in appellate status continuously, following a March 2010 rating
    decision that granted the 10% disability rating, but no higher, a decision with which appellant
    disagreed.21 As we noted above, three VA medical opinions obtained during the pendency of the
    claim were inadequate, leaving only the January 2020 opinion as a medical opinion addressing
    appellant’s disability during the entire period on appeal. The Board implicitly concluded that the
    January 2020 opinion was sufficient to address the entire period on appeal (beginning in 2009),
    but the Board never explained why that was the case.
    As we noted, we review whether a medical opinion is adequate for clear error, a deferential
    standard.22 But the deference we would employ considering a finding about the adequacy of the
    January 2020 VA medical opinion doesn’t come into play because the Board never made a finding
    on that matter.
    The Court’s job is to review what the Board does. When the Board does not explain its
    reasons or actually make a factual determination, the Court’s ability to engage in such review is
    frustrated. As the Federal Circuit held in a similar context, “[t]he Court of Appeals for Veterans
    Claims, as part of its clear error review, must review the Board’s weighing of the evidence. It may
    not weigh any evidence itself.”23 Because the Board made no determination about the adequacy of
    the January 2020 VA medical opinion, the Court is not able to engage in meaningful judicial
    review because there is nothing for it to review. We have no choice but to remand this matter.
    17 Correia, 28 Vet.App. at 170.
    18 See R. at 7-9.
    19 R. at 1403-05.
    20 R. at 7768.
    21 See R. at 7621-22 (May 2010 Notice of Disagreement), 7653-57 (Mar. 2010 rating decision).
    22 D’Aries, 22 Vet.App. at 104.
    23 Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (emphasis in original).
    5
    We recognize that the Secretary crafts a detailed explanation about why the January 2020
    VA medical opinion is adequate. He may very well be correct, but it’s not his place to step into the
    Board’s shoes to fulfill the reasons-or-bases requirement. 24 We have made clear that “[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.”25
  2. Left Knee Instability
    The Board awarded appellant a 10% disability rating for left knee instability under
    38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257.26 Appellant contends that the Board erred when it
    did not award him a higher disability rating under DC 5257. We conclude the Board did not support
    its decision about this matter with an adequate statement of reasons or bases.
    Under DC 5257, a claimant is entitled to a 10% rating for lateral knee instability when the
    instability is “slight,” 20% when it is “moderate,” and 30% when the condition is “severe.”27 The
    Board concluded that appellant’s instability was “slight in severity and, therefore, warrants a
    separate 10[% disability] rating, but no higher.”28
    There are two principal problems with the Board’s determination that appellant was entitled
    to only a 10% disability rating for his left knee instability. First, the Board does not explain what
    it understands the key regulatory terms “slight” and “moderate” to mean. The Board’s failure to
    explain its understanding of these terms is error. We have made clear that the Board cannot base
    its rating decisions (especially when the relevant DC uses subjective terminology) on undisclosed
    standards.29 Doing so amounts to nothing more than the Board saying that a veteran is not entitled
    to a certain benefit “because I say so.”30 This is not fair to appellant and makes it impossible for
    24 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc
    rationalization for agency action.'” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)));
    Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that “the Court cannot accept the Secretary’s post[ ]hoc
    rationalizations” to cure the Board’s reasons-or-bases errors), aff’d, 864 F.3d 1381 (Fed. Cir. 2020); Smith v. Nicholson,
    19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings
    filed in this Court.”).
    25 Evans v. Shinseki, 25 Vet.App. 7, 16 (2011).
    26 R. at 9-10.
    27 38 C.F.R. § 4.71a, DC 5257 (2019). Appellant’s claim was adjudicated under the version of DC 5257 in place before
    amendments that were effective February 7, 2021. See 85 Fed. Reg. 76,453, 76,460 (Nov. 30, 2020).
    28 R. at 10.
    29 Johnson v. Wilkie, 30 Vet.App. 245, 254-55 (2018).
    30 Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017).
    6
    the Court to engage in meaningful judicial review.31 So, even though we noted above that our
    review of the Board’s decision on the degree of disability under the rating schedule is a matter we
    review deferentially for clear error, we are unable to do so here.32 On remand, the Board must explain what it understands the terms “slight” and “moderate” in DC 5257 to mean so that appellant
    will understand why he was evaluated as he was, and the Court can review the Board’s decision
    should that be necessary.
    Second, the Board noted that DC 5257 does not require objective medical evidence of instability.33 The Board is correct.34 However, after stating this principal, the Board focused on
    “objective evidence” in the VA medical opinions to support its conclusion that appellant’s instability was only “slight.”35 We can’t tell whether the Board faithfully applied English v. Wilkie
    or merely recited its holding concerning the lack of a requirement of objective evidence. On remand, the Board must ensure that it does not inappropriately downgrade evidence of instability merely because it is subjective. We stress again that it is inappropriate to categorically favor objective evidence of instability over subjective evidence of that condition.36

    C. Appellant’s Rights on Remand
    Because the Court is remanding this matter to the Board for readjudication, the Court need
    not address any remaining arguments now, and appellant can present them to the Board.37 On
    remand, appellant may submit additional evidence and argument and has 90 days to do so from
    the date of VA’s postremand notice.38 The Board must consider any such additional evidence or
    argument submitted.39 The Board must also proceed expeditiously.40
    31 See Johnson, 30 Vet.App. at 255; see also id. at 256-57 (Allen, J., concurring).
    32 Tedesco, 31Vet.App. at 363; Prokarym v. McDonald, 27 Vet.App. 307, 312 (2015); see also 38 U.S.C. § 7261(a)(4);
    Gilbert, 1 Vet.App. at 53.
    33 R. at 9.
    34 See English v. Wilkie, 30 Vet.App. 347, 352-53 (2018).
    35 R. at 10.
    36 English, 30 Vet.App. at 352-53.
    37 Best v. Principi, 15 Vet.App. 18, 20 (2001).
    38 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
    92 (2018).
    39 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
    40 38 U.S.C. §§ 5109B, 7112.
    7
    II. CONCLUSION
    After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
    ASIDE the July 21, 2020, Board decision and REMANDS this matter for further proceedings
    consistent with this decision
    DATED: October 13, 2021
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)

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