10-46 754
10-46 754
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served in U.S. Marine Corps (2005–2009) and appealed VA RO ratings for bilateral patellofemoral syndrome (PFS).
- Board in Sept 2015 granted separate 10% ratings for left and right knee PFS; Veteran sought higher initial ratings and appealed to CAVC.
- Court granted a Joint Motion for Partial Remand in Mar 2016, vacating and remanding the Board’s decision for further development consistent with the JMR.
- Board remanded in Sept 2016 for new VA examination; the September 2016 exam failed to follow Board directives and Correia testing requirements.
- Deficiencies: examiner did not adequately assess existence, extent, frequency, duration, severity, and functional impact of flare-ups/repetitive-use effects, nor perform active/passive and weight-bearing/nonweight-bearing ROM testing per Correia.
- Board ordered remand to the RO for updated records, a Correia-compliant examination with detailed flare-up/repetitive-use opinions (including degrees of additional ROM loss if feasible), notification to the Veteran, RO review for compliance, readjudication, and corrective action as needed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether initial ratings in excess of 10% for left knee PFS are warranted | Veteran contends current rating undervalues severity, including flare-ups and repetitive-use loss | VA contends 10% rating appropriate based on record/exam | Remanded for a new Correia-compliant exam addressing flare-ups, repetitive-use, and ROM loss estimates |
| Whether initial ratings in excess of 10% for right knee PFS are warranted | Same contention for right knee | Same VA position for right knee | Remanded for same further development and examination |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA examinations must be adequate and provide sufficient detail for Board evaluation)
- Green v. Derwinski, 1 Vet. App. 121 (1991) (medical reports must be detailed enough for a fully informed evaluation)
- Stefl v. Nicholson, 21 Vet. App. 120 (2007) (medical reports must include clear conclusions supported by data)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (VA must perform ROM testing for pain on active/passive motion, weight-bearing and nonweight-bearing, and compare to opposite joint if possible)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence/argument after remand)