Veteranclaims’s Blog

November 6, 2021

Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3234
MARY A. ABBOTT, 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 Mary A. Abbott appeals through counsel a March 22,
2018, Board of Veterans’ Appeals (Board) decision denying entitlement to disability evaluations
in excess of 20% prior to October 8, 2013, and in excess of 50% thereafter for right and left knee
disabilities. Record (R.) at 2-21. For the reasons that follow, the Court will set aside the March
2018 Board decision and remand those matters for further development and readjudication
consistent with this decision.
I. FACTS
Ms. Abbott served on active duty from February 1979 to September 1979 and from
February 1981 to August 1993. R. at 4257. Following service, she filed a claim for service
connection for her knees, and the RO awarded a noncompensable initial evaluation for bilateral
patellofemoral syndrome in June 1995 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257
(recurrent subluxation or lateral instability). R. at 5362. In November 2006, she filed a claim for
increased evaluation. R. at 5045.
July 2007 private treatment records showed stability to varus, valgus, anterior, and
posterior drawer testing. R. at 4990. June 2007 X-rays showed right knee degenerative changes.
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R. at 2984. At an October 2007 VA examination, she reported weakness, stiffness, giving way,
locking, dislocation, and popping, without swelling, heat, redness, lack of endurance, or
fatigability. R. at 4931. The examiner noted weakness, tenderness, guarding, and crepitus in each
knee without edema, effusion, redness, heat, subluxation, genu recurvatum, or locking pain in
either knee. R. at 4931. The examiner measured from 0 to 100 degrees of flexion on the right and
from 0 to 90 degrees of flexion on the left, with pain, fatigue, weakness, lack of endurance, and
incoordination on repetitive use, but no additional functional joint limitation. R. at 4932. All
stability testing was within normal limits, and X-rays showed left knee degenerative changes. Id.
In February 2008, the RO increased the existing noncompensable bilateral evaluation under
DC 5257 to individual evaluations of 10% for each knee under § 4.71a, DC 5099-5019 (analogized
to bursitis) effective November 30, 2006. R. at 4879-82. Ms. Abbott appealed, describing locking
pain, R. at 4858, and the RO responded with an August 2008 Statement of the Case, which
continued the assigned evaluations, R. at 4809-26. Ms. Abbott timely perfected her appeal,
submitting VA treatment records. R. at 4803, 4840-41.
April 2009 VA treatment records show stability, a full range of motion from 0 to 145
degrees, and mild genu varum bilaterally. R. at 4735. Ms. Abbott had arthroscopic surgery for
left knee synovitis in May 2009. R. at 4791. VA post-surgical treatment records show that she
lacked full extension by 15 degrees and had 50% subluxation of the patella, but no instability. R.
at 4704, 4716. June 2009 VA treatment records show knee range of motion from 0 to 125 degrees.
R. at 1082. A July 2009 rating decision awarded a temporary total evaluation effective May 11,
2009, and returned Ms. Abbott’s left knee evaluation to 10% under DC 5099-5019 as of August 1,

  1. R. at 4671-74. From August 2009 through October 2009, Ms. Abbott described left knee
    pain, locking, stiffness, buckling, and giving way. R. at 4285-89. In August 2009, the orthopedic
    surgeon who performed the May 2009 left knee arthroscopy noted that the veteran had healed well,
    with range of motion from 0 to 120 degrees and good stability. R. at 3656.
    At a November 2009 VA examination, Ms. Abbott reported weakness, stiffness, swelling,
    giving way, lack of endurance, locking, fatigability, tenderness, effusion, subluxation, and pain,
    without heat, redness, deformity, drainage, or dislocation. R. at 4558. She also described flareups
    that occur every day and last all day. Id. The examiner noted the surgical scar on the left knee,
    a normal gait, Ms. Abbott’s use of a brace on each knee, and crepitus, but no signs of edema,
    instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity,
    3
    malalignment, drainage, subluxation, guarding, genu recurvatum, locking pain, or ankylosis in
    either knee. R. at 4559. The examiner measured from 0 to 120 degrees of flexion in the right
    knee, and from 0 to 110 degrees of flexion in the left knee, with pain limiting left knee flexion at
    80 degrees on repetition, and pain without additional functional limitation on repetition in the right
    knee. Id. The examiner found no additional functional limitation on repetition due to fatigue,
    weakness, lack of endurance, or incoordination in either knee. Id. For both knees, all stability
    testing was within normal limits, without signs of subluxation, and X-rays showed degenerative
    arthritic changes. R. at 4560.
    In January 2010, Ms. Abbott had right knee arthroscopy and synovectomy, R. at 4292, and
    a July 2010 rating decision awarded a temporary total evaluation effective from January 25, 2010,
    to May 1, 2010, R. at 4239-41. Private post-operative treatment records show stability and good
    strength in each knee, but only 80 to 90 degrees of flexion, with full extension. R. at 4776-78.
    February 2010 VA physical therapy records show active flexion to 40 degrees on the right and 65
    degrees on the left, passive flexion to 101 degrees on the right,1 with both active and passive ranges
    of motion limited by pain, but without instability in either knee. R. at 1026. March 2010 private
    treatment records reflect crepitus and normal movement, without instability. R. at 4321. March
    2010 MRIs show effusion and possible meniscus tear in each knee, but ligaments intact for both
    knees. R. at 1865, 1867. October 2010 private treatment records show complaints of weakness,
    stiffness, swelling, pain, with right knee flexion reduced to 67 degrees, and left knee flexion
    reduced to 49 degrees, with full knee extension while walking. R. at 4380.
    At a January 2011 VA examination, Ms. Abbott reported weakness, stiffness, swelling,
    giving way, lack of endurance, locking, fatigability, tenderness, effusion, subluxation, redness, and
    pain, without heat, deformity, drainage, or dislocation. R. at 4134. She also described frequent
    flare-ups throughout the day, and that she wears a brace on each knee. R. at 4135, 4136. The
    examiner measured from 5 to 120 degrees of flexion for each knee. R. at 4169. At another VA
    examination later that month, Ms. Abbott reported weakness, stiffness, swelling, redness, giving
    way, lack of endurance, locking, fatigability, tenderness, and pain, without effusion, subluxation,
    heat, deformity, drainage, or dislocation. R. at 3933. She also described flare-ups that occur
    multiple times per day and last several hours. Id. The examiner noted an antalgic gait, Ms.
    1 The February 2010 physical therapy treatment record does not list passive range of flexion for the left knee.
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    Abbott’s use of a brace on each knee, guarding of movement, and crepitus in each knee but no
    signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat,
    deformity, malalignment, drainage, subluxation, genu recurvatum, locking pain, or ankylosis in
    either knee. R. at 3934. The examiner measured from 85 to 120 degrees of flexion in the right
    knee, from 85 to 125 degrees of flexion in the left, with pain at the end points of this range in each
    knee; flexion limited to 115 degrees by pain in the right knee on repetition; and pain on repetition
    without additional limitation of motion in the left knee. Id. The examiner noted no additional
    limitation on repetition in either knee due to fatigue, weakness, lack of endurance, or
    incoordination. Id. For both knees, all stability testing was within normal limits, without signs of
    subluxation, and X-rays showed mild arthritic changes symmetrically. R. at 3935.
    April 2011 MRI imaging showed minimal degenerative changes in each knee with a medial
    meniscal tear in the right knee. R. at 4781-83. July 2011 private treatment records reflect 120 to
    125 degrees of flexion bilaterally, full extension, weakness, and a right meniscus tear, but no
    instability. R. at 3848-49. Also in July 2011, Ms. Abbott’s complained of pain, fluid in her right
    knee, and buckling in her left knee to a VA orthopedic surgeon. R. at 3541. That orthopedic
    surgeon noted bilateral genu varum and measured a range of motion from 0 to 145 degrees, but
    found no effusion or instability, and disagreed regarding the MRIs showing a right meniscus tear.
    Id. In August 2011, Ms. Abbott continued to report pain, fluid in her right knee, and buckling in
    her left knee to a VA physician’s assistant who noted mild crepitus and a full range of motion,
    without effusion or instability in either knee. R. at 3666-68.
    At an August 2011 Board hearing, Ms. Abbott reported wearing knee braces and that her
    knee pain has limited her performance of her job functions. R. at 3799. She also described her
    knees giving way, and treatment with physical therapy. R. at 3803. In October 2011, the Board
    changed the DCs used to evaluate Ms. Abbott’s knees from DC 5099-5019 for patellofemoral
    syndrome in each knee to 5003 for arthritis and 5257 for instability, awarding a 10% evaluation
    under each DC for each knee. R. at 3719, 3728-29. The Board also remanded for a new VA
    examination. R. at 3729-31.
    At a December 2011 VA examination, the examiner noted Ms. Abbott’s stiff movement,
    without malalignment, effusion, subluxation, or instability of either knee. R. at 3388. The
    examiner measured from 0 to 125 degrees of range of motion bilaterally, with pain. Id. January
    2013 VA treatment records show crepitus, but no effusion or instability. R. at 386. At a May 2013
    5
    VA examination, Ms. Abbott described her pain, use of knee braces, and daily flare-ups. R. at
    2900-01. The examiner measured from 0 to 130 degrees of range of flexion with pain at 60 degrees
    in each knee. R. at 2901-02. Upon repetition, the examiner reported the same range of flexion
    from 0 to 130 in the right knee, noted limitation to 120 degrees in the left knee, and described
    functional impact in both knees due to disturbances of locomotion and interference with sitting,
    standing, and weight-bearing. R. at 2903-04. The examiner noted full muscle strength, without
    instability or subluxation, and no tibial or fibular impairment. R. at 2905-07, 2911. The examiner
    further noted a left knee meniscus tear causing pain and decreased motion. R. at 2908. August
    2013 MRIs show equivocal evidence of a right knee meniscus tear. R. at 2018.
    At a September 2014 VA examination, Ms. Abbott reported that her knee conditions flare
    up during cold weather. R. at 1916. The examiner measured from 0 to 45 degrees of flexion in
    the right knee and 0 to 60 degrees in the left knee, with pain throughout this range of motion in
    each knee. R. at 1917. Following repetitive motion testing, the examiner measured from 0 to 30
    degrees of flexion bilaterally, with functional limitation of both knees due to pain on motion and
    decreased motion. R. at 1918. The examiner noted muscle strength rated as 4 out of 5, without
    instability in either knee, and no tibial or fibular impairment. R. at 1919. However, the examiner
    also noted severe subluxation in both knees. R. at 1919. The examiner further noted an
    asymptomatic left knee meniscus condition and a right knee meniscus tear with frequent locking,
    joint pain, and effusion. R. at 1920-21. The examiner commented on the functional impact of Ms.
    Abbott’s knee conditions, reporting pain, weakness, fatigability, and incoordination, with
    additional limitation of functional ability during flare-up or with repeated use over time. R. at
  2. The examiner estimated that these factors cause the loss of an additional 15 degrees of
    flexion in the right knee and 30 degrees in the left knee. Id.
    In December 2014, VA treatment records reflect a range of motion from 0 to 120 degrees
    with crepitus bilaterally, and negative instability testing. R. at 537. A March 2015 rating decision
    awarded 30% evaluations under DC 5257 for severe subluxation in each knee and 30% evaluations
    under DC 5260 for limitation of flexion in each knee, effective October 8, 2013. R. at 1421-27.
    The March 2015 rating decision also recognized symptoms of dislocated semilunar cartilage with
    frequent episodes of locking, pain, and effusion in the right knee, but would not award further
    compensation as 30% is the highest available evaluation under DC 5257. R. at 1423. A December
    2015 rating decision granted TDIU and implemented the Board’s October 2011 award, awarding
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    a separate compensable evaluation for slight instability of each knee under DC 5257 effective
    November 30, 2006, and continuing the 30% evaluation for each knee as of October 8, 2013. R.
    at 616-23.
    At an April 2016 VA examination, Ms. Abbott described pain that is the same every day,
    rated at 9 out of 10, and denied flare-ups. R. at 537-38. The examiner considered the range of
    motion testing invalid for rating purposes but noted full muscle strength and found no instability,
    atrophy, or ankylosis in either knee. R. at 536, 538-42. However, the examiner did note pain with
    weight bearing, crepitus, and tenderness to palpation, bilaterally. R. at 538-39. The examiner also
    offered that Ms. Abbott was able to perform repetitive use testing without additional functional
    loss of range of motion. R. at 539. The examiner was unable to comment on any pain, weakness,
    fatigability, or incoordination without resorting to mere speculation, stating that a functional
    capacity examination would be required for each joint and is not possible in a compensation and
    pension examination. R. at 539-40. The examiner noted asymptomatic meniscus conditions in
    each knee, but found no shin splints in either leg. R. at 542. February 2017 VA treatment records
    show crepitus, but no instability, with an active range of motion from 0 to 100 degrees for the right
    knee and 0 to 95 degrees for the left knee. R. at 147. June 2017 VA treatment records show a full
    range of motion. R. at 386. In June 2017, the Board remanded this case for a VA examination
    complying with Correia v. McDonald, 28 Vet.App. 158 (2016). R. at 433-37.
    At the resulting August 2017 VA examination, Ms. Abbott denied flare-ups. R. at 386.
    The examiner was unable to measure Ms. Abbott’s range of motion due to her report of severe pain
    in her knees, but noted her ability to stand and walk without difficulty during the examination. R.
    at 387-90. Therefore, the examiner did not respond to the examination questions regarding range
    of motion testing, weight bearing, repetitive use, and instability. R. at 387-91. However, the
    examiner noted no ankylosis or muscle atrophy. R. at 390-91. The examiner also found no shin
    splints, but did find an asymptomatic left knee meniscus condition. R. at 392. The examiner
    finally noted no degenerative or traumatic arthritis, despite reviewing November 2016 X-rays
    sowing mild degenerative changes in both knees. R. at 394.
    In the March 2018 decision on appeal, the Board denied combinations of evaluations in
    excess of 20% for each knee prior to October 8, 2013, and in excess of 50% for each knee since
    that date. R. at 4. The Board explained that, to warrant increased evaluation prior to October 8,
    2013, the evidence would have to show limitation of flexion to 30 degrees, limitation of extension
    7
    at 10 degrees, dislocated semilunar cartilage, or symptomatic removal of semilunar cartilage, but
    that the evidence did not support such findings. R. at 19. The Board also explained that, to warrant
    increased evaluation following October 8, 2013, the evidence would have to show limitation of
    extension, ankylosis, dislocated semilunar cartilage, or symptomatic removal of semilunar
    cartilage, but that the evidence did not support such findings. R. at 20. The Board noted that,
    despite Ms. Abbott’s self-reported locking pain, she did not have dislocated semilunar cartilage or
    removal of semilunar cartilage, and therefore found that DCs 5258 (dislocated semilunar cartilage
    with frequent episodes of “locking,” pain, and effusion into the joint) and 5259 (symptomatic
    removal of semilunar cartilage) did not apply to this case. R. at 8, 19-20. Regarding Ms. Abbott’s
    arthroscopic surgeries, the Board noted her pain as the only identified residual and explained that
    pain itself does not result in increased evaluation without additional limitation of function. R. at
  3. This appeal followed.
    II. JURISDICTION AND STANDARD OF REVIEW
    Ms. Abbott’s appeal is timely and the Court has jurisdiction to review the March 2018
    Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
    appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
    The duty to assist includes providing a medical examination or obtaining a medical opinion
    based upon a review of the evidence of record if VA determines it is necessary to decide the claim.
    38 C.F.R. § 3.159(c)(4) (2019); see 38 U.S.C. § 5103A(d). 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). A VA medical
    examination or opinion is adequate “where it is based upon consideration of the veteran’s prior
    medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes
    the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will
    be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and
    “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the
    essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). See also
    Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must rest on
    correct facts and reasoned medical judgment so as [to] inform the Board on a medical question
    and facilitate the Board’s consideration and weighing of the report against any contrary reports.”);
    8
    Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination report must
    contain not only clear conclusions with supporting data, but also a reasoned medical explanation
    connecting the two.”).
    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 v. Shinseki, 25 Vet.App. 32, 44
    (2011); DeLuca v. Brown, 8 Vet.App. 202, 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,
    28 Vet.App. at 169-70—i.e., “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).
    The Board’s determinations regarding the adequacy of a medical examination or opinion
    and the appropriate degree of disability are findings of fact subject to the “clearly erroneous”
    standard of review. 38 U.S.C. § 7261(a)(4); see D’Aries v. Peake, 22 Vet.App. 97, 104 (2008);
    Smallwood v. Brown, 10 Vet.App. 93, 97 (1997); see also Ardison, 6 Vet.App. at 407 (holding that
    the Board errs when it relies on an inadequate medical examination). “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)); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (explaining that the Court “is not
    permitted to substitute its judgment for that of the [Board] on issues of material fact” and therefore
    may not overturn the Board’s factual determinations “if there is a ‘plausible’ basis in the record for
    [those] determinations”).
    As with any finding on a material issue of fact and law presented on the record, the Board
    must support its determinations 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.
    See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. 57. To comply with this requirement, the Board
    must analyze the credibility and probative value of evidence, account for evidence it finds
    persuasive or unpersuasive, and provide reasons for rejecting 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.
    9
    1996) (table). The Board must also address all potentially favorable evidence. See Thompson v.
    Gober, 14 Vet.App. 187, 188 (2000) (per curiam order).
    III. ANALYSIS
    Ms. Abbott argues that the Board relied on inadequate examinations. She asserts that the
    October 2007, November 2009, January 2011, and May 2013 examiners failed to provide range of
    motion information for the additional functional loss during a flare-up or on use over time.
    Appellant’s Br. at 14, 19-20. She further asserts that none of these examinations includes
    information regarding active and passive range of motion testing or weight-bearing and nonweight-
    bearing range of motion testing. Appellant’s Br. at 20-21. As to the April 2016 and August
    2017 examination reports, Ms. Abbott notes that neither examiner could offer an opinion on the
    degree of additional functional loss with repeated use without resorting to mere speculation, and
    argues that the examiners made this statement without rationale. Appellant’s Br. at 22.
    The Court agrees with Ms. Abbott that the examinations are inadequate. The October 2007
    VA examiner did not address flare-ups. R. at 4931-32. The November 2009, January 2011, and
    May 2013 examiners noted Ms. Abbott’s report of flare-ups and gave range of motion information
    following repetition, but not during flare-ups. R. at 2903-04, 3934, 4559. The April 2016
    examiner could not offer an opinion regarding repeated use over time without a functional capacity
    examination, R. at 539-40, and the August 207 examiner deferred the examination at Ms. Abbott’s
    request, R. at 387. Examination reports lacking sufficient detail regarding the extent of functional
    loss and limitation due to pain, with use, and during flare-up are not adequate for a fully informed
    evaluation by the Board. Mitchell, 25 Vet.App. at 44. The December 2011, April 2016, and
    August 2017 examinations not only fail to provide information regarding additional limitation
    during flare-ups, but provide no information regarding whether and at what point during the range
    of motion the veteran experienced any limitation of motion that was specifically attributable to
    pain. R. at 387, 539-40, 3386-88; see Mitchell, 25 Vet.App. at 44. Therefore, the Court agrees
    that the October 2007, November 2009, January 2011, December 2011, May 2013, April 2016,
    and August 2017 examinations are inadequate.
    The Court acknowledges that the September 2014 examination provided range of motion
    information, R. at 1917, as well as information regarding additional functional limitation due to
    pain, R. at 1918, and during flare-up or with repeated use over time, R. at 1922. However, this
    10
    examination does not comply with Correia, 28 Vet.App. at 169-70, because the examiner did not
    conduct all the range-of-motion tests required by § 4.59. R. at 5. The September 2014 examiner
    does not indicate whether the ranges of motion measured were active or passive or whether those
    measurements were taken on weight-bearing or non-weight-bearing. See R. at 1917-18. The
    examination report further does not provide an explanation of why such measurements were not
    feasible, possible, or necessary. See Correia, 28 Vet.App. at 170 n.8 (“leav[ing] it to medical
    professionals to determine whether the listed range of motion testing can be performed on the
    joints at issue in a particular case”). This examination is also therefore inadequate. See id. at 169-
  4. The April 2016 examiner explained her failure to comment on additional functional loss due
    to pain with repetitive use, R. at 539-40, but considered range of motion testing invalid and
    therefore provided none of the range of motion information required by § 4.59, R. at 538-39; see
    Correia, 28 Vet.App. at 169-70.
    None of the VA examinations in this case are fully adequate. The Secretary agrees with
    Ms. Abbott’s characterization of the evidence but feels that remand is not required. Secretary’s Br.
    at 15. The Secretary argues that, even if VA failed in fulfilling its duty to assist, Ms. Abbott failed
    to object to the Board’s error in relying on inadequate examinations below and cannot raise the
    argument now. Secretary’s Br. at 19. However, in Maggitt v. West, 202 F.3d 1370, 1377 (Fed.
    Cir. 2000), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that, because
    exhaustion of administrative remedies is not a jurisdictional requirement in the veterans benefits
    system, this Court has discretion to hear arguments raised before it in the first instance, provided
    it otherwise has jurisdiction over the claim. See, e.g., Massie v. Shinseki, 25 Vet.App. 123, 126-
    28 (2011), aff’d on other grounds, 724 F.3d 1325 (Fed. Cir. 2013); see also Carter v. Shinseki, 26
    Vet.App. 534, 540-41 (2014). Ms. Abbott was not represented by an attorney before the Board or
    at any time during the pendency of her claim before VA. She was instead represented by a veterans
    service organization (VSO), which, the Federal Circuit has observed, is “not equivalent to
    representation by a licensed attorney.” Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009).
    Therefore, the Court will hear this argument.
    The Secretary highlights Ms. Abbott’s failure to cooperate with the examiners, Secretary’s
    Br. at 16-17, argues that her lack of cooperation relieves VA of providing further assistance,
    Secretary’s Br. at 17-18, and articulates that without her cooperation the Board had no reason to
    suspect that further remand to get an adequate examination would raise a reasonable possibility of
    11
    aiding her in substantiating her claim, Secretary’s Br. at 18. However, the Secretary’s argument
    overlooks this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”).
    Given the foregoing, the Court concludes that the Board clearly erred in relying on
    inadequate examinations to deny Ms. Abbott’s claims for increased evaluations. See D’Aries, 22
    Vet.App. at 104; Ardison, 6 Vet.App. at 407. Remand is therefore warranted to obtain a medical
    opinion that either complies with Correia, Mitchell, and DeLuca or explains why such compliance
    is not possible. See Correia, 28 Vet.App. at 170 (remanding for a new medical examination where
    “none of the medical evidence of record”—including the challenged VA medical examination—
    “contain[ed] the results of all of the range of motion testing . . . required by the final sentence of §
    4.59″); Barr, 21 Vet.App. at 311; 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”).
    Ms. Abbott additionally argues that the Board failed to consider separate evaluations under
    DC 5258 for dislocated semilunar cartilage with locking pain or DC 5259 for symptomatic removal
    of semilunar cartilage. Appellant’s Br. at 26-27. She specifies several instances in the record
    documenting her complaints of locking pain. Appellant’s Br. at 28. The Secretary responds that
    DC 5259 does not apply because Ms. Abbott’s arthroscopic surgeries were not meniscectomies.
    Secretary’s Br. at 24. He further argues that DC 5258 does not apply because there is no evidence
    of record for dislocated semilunar cartilage, specifies that the evidence of record only reflects a
    possible right knee meniscus tear, and states that tears are not synonymous with dislocation. Id.
    DC 5258 calls for a 20% evaluation for dislocated semilunar cartilage with frequent
    episodes of locking pain and effusion in the joint. 38 C.F.R § 4.71a, DC 5258 (2019). DC 5259
    calls for a 10% evaluation for removal of semilunar cartilage with symptoms. 38 C.F.R § 4.71a,
    DC 5258 (2019). This Court held in Lyles v. Shulkin, 29 Vet.App. 107 (2017), that a veteran with
    12
    a service-connected knee disability evaluated under a limitation-of-motion DC may be entitled to
    a separate evaluation for a meniscal disability of the same knee under DC 5258 or 5259.
    Here, the record reflects that Ms. Abbott reported locking or locking pain at the October
    2007 VA examination, R. at 4931; in her April 2008 Notice of Disagreement (NOD), R. at 4858;
    in August 2009 VA treatment records, R. at 4285; at the November 2009 VA examination, R. at
    4558; and at the January 2011 VA examination, R at 3933, 4134. The Board noted that, despite
    Ms. Abbott’s self-reported locking pain, she did not have dislocated semilunar cartilage or removal
    of semilunar cartilage, and therefore found that DC 5258 does not apply to this case. R. at 8, 19-
  5. The Secretary is correct that the May 2009 left knee surgery appears to have been a
    synovectomy, R. at 4791, and that the January 2010 right knee surgery appears to have been
    synovectomy with plica excision, R. at 4292. However, the Secretary “is not qualified to provide
    [the Court] an explanation of the significance of the clinical evidence.” Kern v. Brown, 4 Vet.App.
    350, 353, (1993).
    Moreover, the May 2013 examiner characterized Ms. Abbott’s May 2009 left knee surgery
    as a meniscectomy and the September 2014 examiner characterized her January 2010 right knee
    surgery as a meniscectomy. R. at 2908, 1920. The Board noted this in its review of the facts, but
    reached its conclusion that DC 5258 does not apply to this case without discussing the May 2013
    and September 2014 examiners’ characterizations of her arthroscopic surgeries, R. at 8, 13, 15, 19-
  6. In view of the Board’s failure to consider this potentially favorable evidence, remand is
    required for an adequate discussion of that evidence considering separate compensable evaluation
    under DC 5259. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“[M]erely listing the
    evidence before stating a conclusion does not constitute an adequate statement of reasons or
    bases”); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (holding that the Board cannot evade its
    statutory duty to discuss all relevant, favorable evidence); see also Thompson, 14 Vet.App. at 188;
    Caluza, 7 Vet.App. at 506.
    The Secretary is not qualified to conclude that meniscus tears are not synonymous with
    semilunar cartilage dislocation and he is not correct that the only evidence of a tear is a possible
    right knee meniscus tear. See Kern, 4 Vet.App. at 353. March 2010 MRIs showed effusion and
    possible meniscus tear in each knee, R. at 1865-67; April 2011 MRI showed medial meniscal tear
    in the right knee, R. at 4781-83; July 2011 private treatment records showed a right meniscus tear,
    R. at 3848-49; the May 2013 examiner noted a left meniscus tear causing pain and decreased
    13
    motion, R. at 2908; August 2013 MRIs show equivocal evidence of right knee meniscus tear, R.
    at 2018; and the September 2014 examiner noted a right knee meniscus tear with frequent locking,
    joint pain, and effusion, R. at 1920-21. The Board reviewed Ms. Abbott’s report of locking pain
    at her October 2007, November 2009, and January 2011 VA examinations, R. at 8-10, but did not
    note her reports of locking pain in her April 2008 NOD or at the May 2013 VA examination.
    Further, the Board reviewed April 2011 MRIs, R. at 11; May 2013 examination report showing
    left meniscus tear, R. at 13, and September 2014 examination report showing right knee meniscus
    tear with frequent locking, joint pain, and effusion, R. at 15; but did not note the August 2009 VA
    treatment records with complaint of locking pain, the March 2010 MRIs showing possible
    meniscus tear in each knee, the July 2011 private treatment records showing a right meniscus tear,
    or the August 2013 MRIs show equivocal evidence of right knee meniscus tear. Nevertheless, the
    Board found that Ms. Abbott does not have dislocated semilunar cartilage and therefore found that
    DC 5258 does not apply to this case. R. at 8, 19-20. In view of the Board’s failure to consider
    potentially favorable evidence, remand is required for an adequate discussion of that evidence
    considering separate compensable evaluations under DC 5258. See Dennis, 21 Vet.App. at 22;
    Gabrielson, 7 Vet.App. at 40.
    The Secretary finally argues that Ms. Abbott failed to show prejudice as to the Board’s
    error in relying on inadequate examinations. Secretary’s Br. at 19-20. However, in making this
    argument, he addresses only the period since October 13, 2013, and argues that there is no
    prejudice during that period because the rating schedule does not permit higher ratings based on
    limitation of flexion and Ms. Abbott does not argue for an evaluation based on limitation of
    extension. Secretary’s Br. at 20. Yet, prejudice is clear because the Board could potentially award
    separate compensable evaluations under DCs 5258 or 5259 on remand, either before or after
    October 9, 2013. See Lyles, 29 Vet.App. at 115. Given that the evidence of record in this case
    reflects meniscus tears of both knees, the issue of entitlement to separate evaluations under DC
    5258 or 5259 was reasonably raised by the record and the Board was obligated to address it. See
    Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (explaining that the Board is required to address
    all issues expressly raised by the appellant or reasonably raised by the record), aff’d sub nom.
    Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Board’s failure to do so therefore
    renders inadequate its reasons or bases for denying additional separate compensable evaluations,
    necessitating remand. See Southall–Norman v. McDonald, 28 Vet.App. 346, 354 (2016) (holding
    14
    that the Board’s failure to discuss a potentially applicable provision of law rendered inadequate the
    reasons or bases for its decision (citing Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see
    also Tucker, 11 Vet.App. at 374.
    Ms. Abbott alternatively argues that there are internal inconsistencies in the October 2007
    VA examination report and that the Board’s reasons or bases are inadequate for failure to consider
    the September 2014 examination report as support for increased evaluations prior to October 8,
  7. Appellant’s Br. at 21, 25. Remand will provide the Board the opportunity to address these
    arguments. And, on remand, Ms. Abbott is free to present additional argument and evidence as to
    that issue, as well as any additional arguments and evidence, to the Board in accordance with
    Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). 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 March 22, 2018, Board decision is SET ASIDE
    and the matters are REMANDED for further development and readjudication consistent with this
    decision.
    DATED: March 30, 2020
    Copies to:
    Alexis M. Ivory, Esq.
    VA General Counsel (027)

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