Veteranclaims’s Blog

December 29, 2021

Joint Exams; 38 C.F.R. §§ 4.40, 4.45 and 4.59; Correia v. McDonald; DeLuca v. Brown, 8 Vet.App. 202,206-07 (1995); flare-ups;

Special considerations apply to VA joints examinations. For a VA joints examination to be adequate, the examination must, among other things, “wherever possible, include the results of the range of motion testing described in the final sentence of [38 C.F.R.]§ 4.59,”

9 Correia v. McDonald, 28 Vet.App.158, 169-70 (2016).

— 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.”

10 38 C.F.R.§4.59 (2021).

In addition, a joints examination must assess the extent of functional loss or limitation of motion due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 experienced during a flare-up.

11 See Mitchell v. Shinseki, 25 Vet.App.32,44 (2011); DeLuca v. Brown, 8 Vet.App. 202, 206-07 (1995)

Where feasible, “these determinations should …be ‘portrayed'[]in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.”

12 DeLuca, 8 Vet.App. at 206; see also Mitchell, 25 Vet.App. at 37.

When flare-ups are indicated, the examiner must offer a flare opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran, after asking the veteran to describe functional limitation.

13 Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017).

When examiners state that they cannot offer a flare opinion without resort to speculation, that opinion is adequate only when it is “clear that [it]is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.”

14 Id. at 36.

Finally, for all its findings on a material issue of fact and law, the Board must support its decision with an adequate statement of reasons or bases that enables a claimant to understand the precise bases for the Board’s decision and facilitates review in this Court.

15  38 U.S.C.§7104(d)(1); Gilbert,1 Vet.App.at 57.

If the Board failed to do so, remand is appropriate.

16 Tucker v. West, 11 Vet.App. 369, 374 (1998)

+++++++++++

Appellant also argues that the March 2019 C&P exam that the Board relied on is inadequate because it does not comply with this Court’s directives in Correia v. McDonald.

Correia v. McDonald, 28 Vet.App.158,169-70 (2016); Appellant’s Br. at 10-13.

The Court agrees. Under Correia, when joint disabilities are evaluated, the examiner should test for pain on both active and passive motion and in weight-bearing and non-weight-bearing positions and record the results.

32 Correia, 28 Vet.App. at 169-70 (citing 38 C.F.R.§ 4.59).

The March 2019 examiner wrote a note in his opinion stating: “Correia: There is objective evidence of pain on passive [ROM]testing of the back .”

33 R.at 552.

The examiner also found objective evidence of pain with weight bearing.

34 R.at 546.

But the exam only gives one set of ROM measurements, and it is unclear which one, as the disability benefits questionnaire (DBQ)that the examiner used does not show what the ROM measurements reflect.

35 Id.

It only states, “initial ROM measurements,” without providing the type of testing those measurements reflect. Either way, nothing in the exam shows any ROM measurements for passive motion or in a weight-bearing position, which were required since the examiner found pain under those circumstances.

36 See Correia, 28 Vet.App. at 169-70.

Because the examiner failed to record ROM results for passive ROM and weight bearing testing, the March 2019 C&P exam is inadequate.

37 See 38 C.F.R.§ 4.59 (2021); Correia, 28 Vet.App. at 169-70

Appellant also argues that the Board erred by relying on the September 2019 C&P exam.

+++++++++

Correia v. McDonald, 28 Vet.App.158, 169-70 (2016) (holding that range-of-motion testing should include, if possible, testing of the opposite undamaged joint); 38 C.F.R. § 4.59 (2021).

++++++ ++ 

Special considerations apply to VA joints examinations. For a VA joints examination to be adequate, the examination must, among other things, “wherever possible, include the results of the range of motion testing described in the final sentence of [38 C.F.R.]§ 4.59,”

9 Correia v. McDonald, 28 Vet.App.158, 169-70 (2016).

— 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.”

10 38 C.F.R.§4.59 (2021).

In addition, a joints examination must assess the extent of functional loss or limitation of motion due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 experienced during a flare-up.

11 See Mitchell v. Shinseki, 25 Vet.App.32,44 (2011); DeLuca v. Brown, 8 Vet.App. 202,206-07 (1995)

Where feasible, “these determinations should …be ‘portrayed'[]in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.”

12 DeLuca, 8 Vet.App. at 206; see also Mitchell, 25 Vet.App. at 37.

When flare-ups are indicated, the examiner must offer a flare opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the veteran, after asking the veteran to describe functional limitation.

13 Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017).

When examiners state that they cannot offer a flare opinion without resort to speculation, that opinion is adequate only when it is “clear that [it]is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.”

14 Id. at 36.

Finally, for all its findings on a material issue of fact and law, the Board must support its decision with an adequate statement of reasons or bases that enables a claimant to understand the precise bases for the Board’s decision and facilitates review in this Court.

15  38 U.S.C. § 7104(d)(1); Gilbert,1 Vet.App.at 57.

If the Board failed to do so, remand is appropriate.

16 Tucker v. West, 11 Vet.App. 369, 374 (1998)

+++++++++++

Appellant also argues that the March 2019 C&P exam that the Board relied on is inadequate because it does not comply with this Court’s directives in Correia v. McDonald.

Correia v. McDonald, 28 Vet.App.158,169-70 (2016); Appellant’s Br. at 10-13.

The Court agrees. Under Correia, when joint disabilities are evaluated, the examiner should test for pain on both active and passive motion and in weight-bearing and non-weight-bearing positions and record the results.

32 Correia, 28 Vet.App. at 169-70 (citing 38 C.F.R.§ 4.59).

The March 2019 examiner wrote a note in his opinion stating: “Correia: There is objective evidence of pain on passive [ROM]testing of the back .”

33 R.at 552.

The examiner also found objective evidence of pain with weight bearing.

34 R.at 546.

But the exam only gives one set of ROM measurements, and it is unclear which one, as the disability benefits questionnaire (DBQ)that the examiner used does not show what the ROM measurements reflect.

35 Id.

It only states, “initial ROM measurements,”

without providing the type of testing those measurements reflect. Either way, nothing in the exam shows any ROM measurements for passive motion or in a weight-bearing position, which were required since the examiner found pain under those

circumstances.

36 See Correia, 28 Vet.App. at 169-70.

Because the examiner failed to record ROM results for passive ROM and weight bearing testing, the March 2019 C&P exam is inadequate.

37 See 38 C.F.R.§ 4.59 (2021); Correia, 28 Vet.App. at 169-70

Appellant also argues that the Board erred by relying on the September 2019 C&P exam.

+++++++++

Correia v. McDonald, 28 Vet.App.158, 169-70 (2016) (holding that range-of-motion testing should include, if possible, testing of the opposite undamaged joint); 38 C.F.R. § 4.59 (2021).

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