04-24 624
04-24 624
| Board of Vet. App. | May 22, 2017Background
- Veteran served on active duty in 1989 and 1989–1992 and has service‑connected bilateral knee disabilities (patellofemoral syndrome with CRPS) and a claim for pes planus (flat feet).
- VA originally granted 10% ratings for both knees effective July 3, 2001; later increased ratings and related claims (including TDIU and SMC) are on appeal.
- The Board previously granted TDIU from September 23, 2005, but denied/left unresolved increased ratings, service connection for pes planus, earlier extraschedular TDIU, and SMC; the case has been remanded multiple times and returned for additional development.
- September 2015 VA knee examination was obtained but did not include required passive range of motion testing or other Correia‑required elements (active/passive, weight‑bearing/nonweight‑bearing, opposite joint testing).
- Podiatry records referenced in VA opinions (from CPRS) are not in the VBMS/Virtual VA file; the Board ordered retrieval of any CPRS podiatry consults from Jan 2011 to present or a formal finding that none exist.
- Board remanded again to obtain missing podiatry records, to schedule a new, Correia‑compliant knee examination (including flare‑up evaluation and rationale), and—if pes planus is service connected—an aid‑and‑attendance exam; supplemental SOC to follow if denials remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for pes planus | Pes planus is service‑connected and possibly aggravated by service‑connected knee conditions | VA contends insufficient evidence or records to establish service connection/ aggravation | Remanded for retrieval of podiatry records and, if needed, further development before adjudication |
| Initial rating for right knee (claims for increased ratings across periods) | Higher ratings warranted based on functional loss, pain, flares, and prior record | Current record lacks required range‑of‑motion and flare testing per Correia | Remanded for new VA exam including active/passive, weight/nonweight‑bearing, opposite joint, and flare assessment |
| Initial rating for left knee (claims for increased ratings across periods) | Same as right knee — higher ratings owed | Same as above | Remanded for the same Correia‑compliant examination and further development |
| TDIU (including extraschedular) before Sept 23, 2005; SMC (aid & attendance/housebound) | Veteran seeks earlier TDIU and SMC based on disability severity and need for aid | VA deferred further TDIU/SMC adjudication until ratings/service connection issues resolved | Deferred/remanded as inextricably intertwined with ratings/service‑connection development; to be addressed after required development |
Key Cases Cited
- Percy v. Shinseki, 23 Vet. App. 37 (2009) (Board may adjudicate issues certified by RO despite absence of timely substantive appeal)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (VA examinations must include active and passive ROM, weight‑bearing and nonweight‑bearing testing, and opposite joint testing when possible)
- Harris v. Derwinski, 1 Vet. App. 180 (1991) (inextricably intertwined issues should be adjudicated together)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran may submit additional evidence/argument after Board remand)