12-32 837
12-32 837
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty from March 1981 to May 2004 and appealed VA RO Atlanta’s September 2011 decision granting 10% ratings for each knee but denying higher ratings.
- Board held a videoconference hearing in April 2016; claim was remanded in December 2016 and subsequently reexamined (most recently January 2017).
- Relevant medical evidence: April 2011 VA exam showed bilateral knee flexion to 0–140° (normal) with reported pain; July 2011 records showed right flexion to 135° and left flexion to 100°; January 2017 VA exam again documented flexion 0–140° and no objective tenderness or instability.
- Veteran reported symptomatic flare-ups, giving way, pain with walking/running, popping and stiffness; emergency visits (2011, 2012) documented pain and limited ROM due to pain, left effusion at times.
- Board found objective evidence of arthritis and painful motion sufficient for the assigned 10% ratings under the arthritis/limitation-of-motion codes, but medical evidence did not show ROM or instability meeting criteria for ratings above 10%.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entitlement to an initial rating >10% for right knee is warranted | Veteran contended worsening pain, giving way, and limited ROM justify higher rating | VA/Board relied on examiner findings showing at-worst right flexion 135° and no objective instability or greater functional loss | Denied — preponderance shows max compensable criteria not met; 10% affirmed |
| Whether entitlement to an initial rating >10% for left knee is warranted | Veteran contended flare-ups, pain, limited flexion and giving way justify higher rating | VA/Board relied on records showing at-worst left flexion 100°, normal extension, and no objective instability sufficient for higher code | Denied — preponderance shows criteria for ratings above 10% not met; 10% affirmed |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand compliance standard)
- D'Aries v. Peake, 22 Vet. App. 97 (2008) (remand compliance standard)
- Dyment v. West, 13 Vet. App. 141 (1999) (remand compliance standard)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (preponderance and reasonable doubt rules)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (adequacy of VA examination)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (duty to obtain medical opinion)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (consideration of functional loss due to pain/weakness)
- Gabrielson v. Brown, 7 Vet. App. 36 (1994) (credibility and probative value analysis)
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir.) (Board need not discuss every piece of evidence)