09-27 879
09-27 879
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served active duty 1962–1982; service connection granted for low back DDD and right knee arthritis with 10% ratings effective Jan 22, 2008.
- Earlier Board denied increased ratings in Nov 2015; Veteran appealed to Court and parties filed a Joint Motion to vacate/remand in Oct 2016, granted Nov 2016.
- Record includes multiple VA exams (2008, 2009, 2013, 2016) and private treatment notes showing markedly limited forward flexion in Sept–Oct 2009 (25° and 20°).
- Joint Motion raised two principal concerns: (1) adequacy of back examinations under Correia for documenting pain-related functional loss (active/passive, weightbearing/nonweightbearing), and (2) whether combined effects of back and right knee warrant extraschedular consideration under 38 C.F.R. § 3.321(b) and Johnson.
- An April 2016 RO decision and a Feb 2016 VA exam were issued while the appeal was pending, creating potential procedural/due-process issues and need for correct SSOC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether back rating >10% warranted and whether exams are adequate | Veteran argues back disability may be more severe; private records show very limited flexion and Correia requires detailed motion/pain testing | VA/Board previously relied on existing exams and treated limited 2009 readings as temporary flare-ups | Remanded: exams inadequate under Correia; obtain new VA exam documenting active/passive and weightbearing/nonweightbearing motion, pain-on-motion, flare-ups, and rationale re 2009 limited flexion |
| Whether referral for extraschedular rating for back is warranted | Veteran (via Joint Motion) contends combined impact of back and right knee may be exceptional (evidence of cane use) requiring §3.321(b) consideration | Board previously declined extraschedular referral without fully addressing combined effects evidence | Remanded: new medical opinion must address collective functional impact of back+knee and whether schedular criteria are inadequate |
| Whether referral for extraschedular rating for right knee is warranted | Veteran raises overlapping-effect argument (combined impairment) | VA/Board previously denied on schedular grounds; parties limited Court appeal re knee to extraschedular referral only | Remanded: combined-effects opinion obtained with back exam may resolve whether referral for knee extraschedular consideration is warranted |
| Procedural correctness and duty to assist (records/SSOC) | Veteran/representative assert AOJ's post-appeal actions (April 2016 rating decision) and new exam require clarification and proper SSOC | AOJ must correct procedural missteps and provide appropriate notifications | Remanded: AOJ to obtain records, issue correct SSOC(s), allow response, and readjudicate before returning to Board |
Key Cases Cited
- Correia v. McDonald, 28 Vet. App. 158 (exam must record pain’s effect on active and passive motion and in weightbearing/nonweightbearing for joint disabilities)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (consider combined/overlapping effects of multiple disabilities for extraschedular referral)
- Harris v. Derwinski, 1 Vet. App. 180 (issues are inextricably intertwined when resolution of one depends on the other)
- Kutscherousky v. West, 12 Vet. App. 369 (appellant may submit additional evidence/argument after remand)