10-40 624
10-40 624
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served on active duty Jan 1980–Feb 1982 and appealed VA RO decisions denying increased ratings for a service-connected left knee disorder.
- Claim originally granted noncompensable in 1982, later assigned 10% (Feb 1982), 20% (Apr 1985), then various reductions; current appeal stems from a December 2009 claim and an August 2010 RO decision with subsequent development and a Sept. 2016 Correia remand.
- Key medical evidence: VA exams and treatment records show left knee ROM generally between 0–120° and, at worst during the appeal period, flexion limited to 90° (2012 DBQ) and later to 100° (2016 exam); repetitive testing did not produce greater measured loss.
- April 18, 2012 DBQ documented painful motion, flare‑ups, medial–lateral instability measured at 0–5 mm, and traumatic/degenerative changes; later records show continued pain, occasional giving way, and ROM commonly 5°–120° or 0°–100° depending on exam.
- Board found instability measurements (0–5 mm) consistent with "slight" lateral instability and determined that the evidence did not show flexion limited to 45° or less (required for >10% under DC 5260).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Increased rating >10% for left knee limitation of flexion | Veteran: pain, flare‑ups, and functional loss justify a higher rating | VA/Board: objective ROM measurements never showed flexion limited to ≤45°; repetitive testing did not show greater loss | Denied—no higher rating; ROM never shown <45° (DC 5260) |
| 2) Increased rating >10% for left knee instability | Veteran: recurrent giving way, popping, and functional limitations support greater instability rating | VA/Board: instability measurements were 0–5 mm (slight); no evidence of moderate/severe instability | Part grant: 10% for slight lateral instability effective Apr 18, 2012; any rating >10% denied |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (Board need not develop procedural arguments not raised by veteran)
- Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir.) (applies Scott to duty to assist arguments)
- Mitchell v. Shinseki, 25 Vet. App. 32 (pain may cause functional loss only if it limits normal working movements)
- DeLuca v. Brown, 8 Vet. App. 202 (pain, weakened movement, fatigability relevant to functional loss under §4.40)
- Johnston v. Brown, 10 Vet. App. 80 (functional loss due to pain must be supported by pathology and observable behavior)
- Francisco v. Brown, 7 Vet. App. 55 (when increase is at issue, focus is on present level of disability)