09-40 239
09-40 239
| Board of Vet. App. | Jun 27, 2017Background
- Veteran served Aug 1969–Apr 1973 and is service‑connected for a right knee disability (rated 20% under DC 5260 for limitation of flexion).
- VA Regional Office issued a rating decision in May 2009; appeal proceeded to the Board and a hearing was held Feb 2016.
- The Board denied a rating above 20% in March 2016; the Veteran appealed to the Court of Appeals for Veterans Claims.
- The Court granted a joint motion in Apr 2017 vacating the March 2016 Board decision and remanding for additional development.
- An October 2015 VA examination provided ROM measurements but did not specify whether they were active vs. passive or weight‑bearing vs. non‑weight‑bearing, nor did it state such testing was impossible or unnecessary.
- The Board remanded for compliance with Correia v. McDonald requiring, when possible, ROM testing for pain on active and passive motion in weight‑bearing and non‑weight‑bearing, plus assessment of functional loss on repeated use and during flare‑ups.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of VA knee exam under 38 C.F.R. § 4.59 / Correia | VA exam must include active/passive and weight/non‑weight ROM testing so effects of pain can be assessed | Prior exam adequate because it provided ROM measurements and pain description | Board remanded: exam inadequate under Correia; new exam required with specified testing or explanation why not possible |
| Assessment of additional functional loss on repeated use/flare‑ups | Examiner must opine on additional ROM loss from repeated use/flare‑ups or explain why speculative | VA had not provided such an opinion after Oct 2015 exam | Remand orders examiner to assess additional functional impairment in degrees of ROM loss or explain infeasibility |
| Record development (treatment records) | All outstanding VA treatment records should be obtained and associated with file | RO had not associated potentially outstanding VA records | Remand instructs obtain and associate outstanding VA treatment records |
| Procedure after remand | Veteran may submit evidence; claims must be handled expeditiously | N/A | Board gave remand instructions: new exam, review expanded record, issue SSOC if denial persists; no merits decision made |
Key Cases Cited
- Correia v. McDonald, 28 Vet. App. 158 (2016) (requires, where possible, ROM testing for pain on active and passive motion in weight‑bearing and non‑weight‑bearing for joint exams)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (RO must associate outstanding VA treatment records when developing a claim)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence and argument on remanded matters)