11-31 846
11-31 846
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served in the Army with multiple periods of active duty and has ongoing service-connected lumbar spine and bilateral knee disabilities.
- Appeal from a January 2010 RO rating decision, and the case has been remanded repeatedly (Board remands in 2014, 2015, 2016) for additional development.
- Veteran testified at an October 2014 Board hearing; claims were processed in VBMS/Virtual VA.
- VA examinations were obtained in September 2016 but failed to include required testing formats (weight-bearing vs. non-weight-bearing; active vs. passive) for knees and did not clarify mode of lumbar testing.
- Because of incomplete exam data and Correia requirements, the Board remanded for new VA examinations and retrospective opinions covering active/passive and weight-bearing/non-weight-bearing testing and assessment of functional loss since 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Increased rating >20% (lumbar) prior to 9/12/2016 and >40% after | Veteran argues current ratings understate lumbar functional loss and pain on various testing modes | VA relies on existing exam reports that lack required testing detail | Remanded for new exam and retrospective opinion including active/passive and weight-bearing/non-weight-bearing ROM and functional loss assessment |
| Increased rating >30% for right knee (including chondromalacia, torn meniscus, osteomalacia) | Veteran contends right knee impairment warrants higher rating | VA’s prior exams lacked weight-bearing/non-weight-bearing and passive testing details | Remanded for new bilateral knee exams and retrospective opinion with complete ROM and functional loss analysis |
| Increased rating >10% for left knee (strain with DJD) | Veteran contends left knee impairment warrants higher rating | VA’s prior exams incomplete under Correia | Remanded for new exams and retrospective opinion with required testing and functional loss assessment |
| Rating >10% for left knee limitation of flexion on/after 9/12/2016 | Veteran seeks higher flexion limitation rating based on pain and functional loss | VA records do not contain required testing to support higher rating | Remanded pending proper testing and retrospective opinion |
Key Cases Cited
- Correia v. McDonald, 28 Vet. App. 158 (2016) (requires VA exams to include active and passive motion testing and weight-bearing and nonweight-bearing assessment)
- Olsen v. Principi, 3 Vet. App. 480 (1992) (standards for medical examination adequacy and necessity of development)
- Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (same; scope of VA’s duty to assist in developing evidence)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (Veteran may submit additional evidence on remand)