10-26 192
10-26 192
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served in the Army (1982–2004) and has a service-connected status post total right hip arthroplasty, currently rated 30% (temporary 100% for one year after surgery).
- RO granted temporary 100% from Sept 30, 2008–Oct 31, 2009, and 30% thereafter; Veteran appealed for an increased rating beginning Nov 1, 2009.
- Board remanded the claim multiple times for development and VA examinations (2015, 2016).
- VA examiners in 2010, 2015, and July 2016 provided findings but the July 2016 exam failed to measure range of motion in active vs. passive and weightbearing vs. nonweightbearing as required.
- The Board found the July 2016 examination inadequate under Correia and other precedent and ordered further development (obtain records, new DBQ exam with specified testing, notification, and readjudication).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VA examination evidence is adequate to rate the right hip disability | Veteran contends current record supports evaluation in excess of 30% (through contest of RO rating) | VA relied on existing exam reports but does not assert adequacy given missing measurements | Board: VA exams inadequate; remand for a new exam with specific active/passive and weightbearing/nonweightbearing ROM data |
| Whether VA satisfied its duty to assist by obtaining relevant medical records | Veteran asked for development and earlier remands sought records; claimant expects records to be secured | AOJ had not associated all potentially relevant records with file | Board: remand to obtain and associate outstanding treatment records and document searches |
| Whether the examiner adequately addressed functional loss and flare-ups | Veteran reported flare-ups and functional limits (sitting, walking, running, biking) | Prior examiners declined to quantify functional loss from flare-ups or did not document testing modalities | Board: opinions insufficient without reasoned analysis tied to required ROM/weightbearing testing; remand for opinion supported by rationale |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (medical exam must be adequate)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (examiner must be informed of relevant facts and provide adequate rationale)
- Stefl v. Nicholson, 21 Vet. App. 120 (medical opinions must address theories of entitlement and include supporting analysis)
- Correia v. McDonald, 28 Vet. App. 158 (joints must be tested for pain on active/passive motion and weightbearing/nonweightbearing)
- Stegall v. West, 11 Vet. App. 268 (AOJ must comply with remand directives)
- Kutscherousky v. West, 12 Vet. App. 369 (veteran may submit additional evidence after remand)