Michael A. Hudgens v. Sloan D. Gibson
26 Vet. App. 558
Vet. App.2014Background
- Hudgens, a U.S. Army veteran, had a unicompartmental (partial) right knee arthroplasty in 2003 for degenerative joint disease.
- RO initially awarded 10% for DJD in 2006, later adding a 10% rating for knee instability in 2007.
- In 2009 the RO reduced the right knee instability rating from 10% to noncompensable, effective November 22, 2008.
- Hudgens argued DC 5055 applies by analogy to his partial knee replacement, but the Board held DC 5055 covers only total knee replacements.
- The Board also upheld the reduction of his 10% instability rating and remanded other issues; the court partly reversed/remanded for further adjudication.
- The court remanded for consideration of analogic rating under DC 5055, and for addressing higher ratings under DC 5258 and DC 5259 as supported by the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DC 5055 applies to partial knee replacements | Hudgens contends DC 5055 covers partial replacements by analogy. | Hudgens argues plain language includes all knee joints; Secretary maintains only total replacements | Remand to determine analogic rating and interpretation consistency |
| Whether the Board erred in upholding the rating reduction for right knee instability | Record shows instability evidence (knee buckling/giving way; dislocation on extension). | Board found no instability; remand appropriate. | Rating reduction reversed and remanded to reinstate 10% rating |
| Whether higher ratings under DC 5258 or DC 5259 were warranted | Evidence suggested dislocation, swelling, and pain; DC 5258/5259 may apply. | DC 5258 not supported by dislocated cartilage; remand needed to address 5259. | Remand to address applicability of DC 5258 and DC 5259 |
| Whether the Board adequately addressed analogy and related regulatory interpretation | Board failed to consider factors for analogous rating under DC 5055. | Board properly applied law; no need to discuss analogy. | Board remanded for proper analysis on analogy and reasons/bases |
Key Cases Cited
- Brown v. Gardner, 513 U.S. 115 (1994) (interpretive doubt resolved in veteran's favor when regulation ambiguous)
- Jones v. Shinseki, 26 Vet.App. 56 (2012) (medication effects considered when rating criteria contemplate them)
- Schafrath v. Derwinski, 1 Vet.App. 589 (1991) (Board must consider all potentially applicable provisions)
- Lendenmann v. Principi, 3 Vet.App. 345 (1992) (rating by analogy when not explicitly provided by DCs)
- Tropf v. Nicholson, 20 Vet.App. 317 (2006) (unchallenged historical practice of Secretary not conclusive evidence of correctness)
- King v. Shinseki, 26 Vet.App. 484 (2014) (remand or correction where required by law; Board decisions remanded)
- Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (court cannot rely on evidence not in the record for factual findings)