Correia v. McDonald
28 Vet. App. 158
| Vet. App. | 2016Background
- Veteran Jeffrey W. Correia appealed a Sept. 30, 2013 BVA decision denying increased ratings for right and left knee disabilities (current ratings: right 30%, left 20%).
- VA medical exams (1995, 2003, 2007, 2012) and Board hearing evidence were in the record; none contained the full set of range-of-motion (ROM) tests described in 38 C.F.R. § 4.59’s final sentence.
- The Court stayed proceedings pending Petitti v. McDonald and later lifted the stay; parties submitted supplemental briefs about § 4.59’s meaning.
- Correia argued § 4.59 requires testing for pain on active/passive motion and weight-bearing/non-weight-bearing and that the 2012 exam was therefore inadequate.
- The Secretary argued § 4.59 is precatory and does not mandate specific ROM tests; he alternatively sought deference to his interpretation.
- The Court vacated the BVA decision and remanded, holding that § 4.59’s final sentence is ambiguous but, read in context, requires the listed ROM testing where practicable and that VA failed its duty to assist here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4.59’s final sentence mandates specific ROM testing | Correia: § 4.59 requires testing for pain on active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, comparison with the opposite undamaged joint | Secretary: The word "should" is precatory; regulation does not impose a rigid testing protocol and does not mandate those tests in every case | The sentence is ambiguous in isolation but, read with §§ 4.40/4.45 and the rating scheme, it requires the listed ROM testing whenever practicable |
| Whether the Secretary’s contrary interpretation is entitled to deference | Correia: Secretary has previously conceded remand is required when exams lack § 4.59 testing; inconsistent positions undermine deference | Secretary: Agency interpretation is reasonable and warrants Auer deference if § 4.59 is ambiguous | No Auer/agency deference; Secretary’s position is inconsistent with prior agency practice and not treated as the agency’s considered view |
| Whether VA satisfied its duty to assist with adequate medical exams | Correia: 2012 exam lacked required § 4.59 ROM testing and thus was inadequate | Secretary: Did not dispute that the record lacked all § 4.59 testing and did not dispute practicability here | VA failed its duty to assist; remand required for an examination performing the required ROM testing where practicable |
| Whether other Board errors require relief now | Correia: Board failed to address separate rating for right-knee instability and other reasons-or-bases issues | Secretary: Concedes some issues and procedural posture noted | Court remanded; Board must consider instability and may address other issues on readjudication (some issues moot for now) |
Key Cases Cited
- Petitti v. McDonald, 27 Vet.App. 415 (Vet.App. 2015) (guidance on § 4.59’s role in musculoskeletal ratings)
- Burton v. Shinseki, 25 Vet.App. 1 (Vet.App. 2011) (applicability of § 4.59 beyond arthritis)
- Auer v. Robbins, 519 U.S. 452 (U.S. 1997) (deference to agency interpretation of its own regulation)
- Palmer v. Nicholson, 21 Vet.App. 434 (Vet.App. 2007) (interpretation that "should" is not necessarily mandatory)
- Mulder v. Gibson, 27 Vet.App. 10 (Vet.App. 2014) (limits on deference to agency interpretations)
- Mitchell v. Shinseki, 25 Vet.App. 32 (Vet.App. 2011) (requirements for evaluating functional loss during flare-ups)
- DeLuca v. Brown, 8 Vet.App. 202 (Vet.App. 1995) (examiner duty to address additional limitation during flare-ups)
- D'Aries v. Peake, 22 Vet.App. 97 (Vet.App. 2008) (VA’s duty to assist and need for examination when record is inadequate)