10-39 713
10-39 713
Board of Vet. App.May 4, 2017Background
- Veteran served Mar 1962–Feb 1965 and applied in May 2008 for service connection for residuals of a broken right leg; RO granted service connection for right knee chondromalacia with mild patellofemoral DJD (10%) and for residuals of right fibular fracture (0%), effective May 27, 2008.
- Veteran filed a notice of disagreement with the initial ratings and testified at a VA hearing in Apr 2014; Board remanded for further development in May 2015 and Sep 2016.
- The Board previously directed a VA exam to assess ROM (active, passive, weight-bearing, nonweight-bearing), whether "giving way" equates to instability or recurrent subluxation, and functional loss from pain/flare-ups.
- A Nov 2016 VA exam failed to provide requested passive ROM results and did not answer whether "giving way" represented instability/subluxation, rendering the exam inadequate and noncompliant with the Board’s remand.
- In Mar 2017 the Veteran submitted a written withdrawal of the appeal for a higher (compensable) rating for the right fibular fracture; the Board dismissed that issue as withdrawn and remanded the knee-rating issue for a new VA exam and readjudication.
- A separate claim to reopen service connection for right knee bursitis, raised in the record, remains unadjudicated by the RO and is referred back to the AOJ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether initial rating >10% is warranted for right knee chondromalacia, and whether separate instability rating is appropriate | Veteran argues his knee symptoms (giving way, pain, functional loss) support a higher rating and possibly separate instability rating | VA/RO relied on available exam and assigned 10% for chondromalacia and 0% for fibular fracture; contested evidence insufficient for higher rating | Remanded: Nov 2016 exam inadequate; AOJ ordered new exam to test ROM (active/passive, weight/nonweight-bearing), opine on whether "giving way" equals instability/subluxation, and quantify functional loss from pain/flare-ups; then readjudicate |
| Whether a separate compensable rating is warranted for instability of the right knee | Veteran contends giving-way episodes approximate lateral instability/recurrent subluxation meriting separate rating | RO/VA has not established instability equal to service-connected disability under current record | Remanded for examiner opinion whether giving-way is analogous to lateral instability/recurrent subluxation and for rationale |
| Whether the appeal for a higher rating for residuals of the right fibular fracture should proceed | Veteran requested increase originally | VA would adjudicate if appealed; but Veteran submitted withdrawal | Dismissed: Veteran withdrew substantive appeal in Mar 2017, so Board lacks jurisdiction to review that issue further |
| Whether prior Board remand was complied with by the Nov 2016 VA exam | Veteran seeks compliance and adequate development | Nov 2016 examiner failed to provide requested passive ROM measurements and did not address instability question | Held: No substantial compliance; additional VA exam required per Stegall and D'Aries principles |
Key Cases Cited
- Sabonis v. Brown, 6 Vet. App. 426 (explains when discussion of VCAA duties is unnecessary for legal withdrawals)
- Mason v. Principi, 16 Vet. App. 129 (administrative context for Board procedures)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant's right to submit additional evidence after remand)
- Stegall v. West, 11 Vet. App. 268 (Board must ensure VA/RO compliance with remand directives)
- D'Aries v. Peake, 22 Vet. App. 97 (clarifies substantial compliance standard with remand orders)