09-44 974
09-44 974
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served active duty 1986–2000 and has service‑connected right ACL reconstruction with degenerative joint disease and degenerative arthritis of the left knee; initial ratings were 10% each.
- Administrative development: multiple VA examinations (2007–2017), Board remands, a 2012 RO increase to 20% for the right knee effective February 15, 2012, and a CAVC joint motion remand in 2014 returning the matter to the Board.
- Key medical findings across the record: variable ROM measurements over time (right knee flexion as low as 20–30° at times; left knee generally better, often 0–120°), intermittent swelling, pain, use of cane and brace, periodic hyalgan injections, and no consistent objective evidence of recurrent subluxation/instability or ankylosis.
- Board relied on diagnostic criteria in 38 C.F.R. § 4.71a (DCs 5003, 5260, 5261, 5257, etc.) to evaluate whether higher ratings were warranted and whether functional loss beyond range of motion justified increased ratings.
- Result below: Board denied increased ratings for the right knee in excess of 10% prior to Feb 15, 2012 and in excess of 20% thereafter; denied increased rating in excess of 10% for the left knee for the entire period on appeal.
Issues
| Issue | Plaintiff's Argument (Veteran) | Defendant's Argument (VA/Board) | Held |
|---|---|---|---|
| Whether the right knee rating should be >10% before Feb 15, 2012 and >20% thereafter | Right knee causes significant functional loss (pain, giving way, limited ROM, need for brace/cane, flare‑ups) warrant higher rating and staged ratings | Objective exam findings do not show ROM/instability elements required for higher schedular ratings except flexion limited warranting 20% only as of Feb 15, 2012; functional loss is accounted for in assigned DCs | Denied: 10% pre‑2/15/12; 20% from 2/15/12 (no higher rating) |
| Whether left knee rating should be >10% | Left knee pain, intermittent locking and functional limitation warrant >10% | Exams do not show ROM or instability meeting higher DC thresholds; symptoms fall within DC 5003 10% criteria | Denied: 10% for entire period |
| Whether functional loss (pain, weakness, flare‑ups, use of aids) requires higher or separate ratings (pyramiding concern) | Functional loss during use/flare‑ups justifies higher rating or separate code | Functional loss is contemplated by joint diagnostic codes; separate rating would impermissibly pyramid | Denied: functional loss already accounted for in assigned DCs |
| Whether VA satisfied VCAA and duty‑to‑assist (adequacy of exams) | (Implicit) VA must obtain adequate exams and opinions to assess ROM, flare‑ups, and functional loss | VA provided multiple exams and opinions; development substantially complied with remand directives | Held: VA satisfied notice and duty‑to‑assist; exams adequate for adjudication |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (remand compliance standard)
- Barr v. Nicholson, 21 Vet. App. 303 (examination adequacy requirement)
- Burton v. Shinseki, 25 Vet. App. 1 (pain/functional loss may warrant higher rating under §4.59)
- Southall‑Norman v. McDonald, 28 Vet. App. 346 (§4.59 not limited to ROM‑based DCs)
- Sowers v. McDonald, 27 Vet. App. 472 (10% under §4.59 requires diagnostic code with 10% tier)
- Bastien v. Shinseki, 599 F.3d 1301 (factfinder discretion in weighing evidence)