Jeffrey T. Petitti v. Robert A. McDonaldJeffrey T. Petitti v. Robert A. McDonald
Brent Bowker, with whom Will A. Gunn, General Counsel; Mary Ann Flynn, Assistant General Counsel; and Kenneth A. Walsh, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.
Before HAGEL, Chief Judge, and SCHOELEN, and BARTLEY, Judges.
SCHOELEN, Judge:
Jeffrey T. Petitti appeals through counsel, a November 20, 2013, Board of Veterans Appeals (Board) decision that denied entitlement to a disability rating in excess of 40% for rheumatoid arthritis (RA). Record (R.) at 3-21. This matter was referred to a panel of the Court to address, with oral argument, whether the Board erred in concluding that Mr. Petitti was not entitled to a minimum compensa-
I. BACKGROUND
A. Active Duty
Mr. Petitti served on active duty in the U.S. Air Force from July 1985 to July 1991 and from November 1993 to May 1995. R. at 1003-06. Service treatment records indicate that, in June 1994, Mr. Petitti was seen for a sudden onset of burning pain in his hands, wrists, and feet that was accompanied by swelling, stiffness, and erythema. R. at 794-96, 797, 899. Over the course of the next several months, these symptoms continued, worsened, and spread to the elbows, shoulders, knees, ankles, and hips. R. at 799-824, 897-98, 912. Mr. Petitti also experienced considerable morning stiffness for 2 to 3 hours with intermittent redness and tenderness in the hands, which was aggravated with activity. R. at 808, 894. He could no longer work at his private job as a landscaper, and he had difficulty with certain tasks, such as washing dishes. R. at 894. By September 1994, Mr. Petitti was diagnosed by a military physician with seronegative RA and placed on an immunosuppressive drug regimen. R. at 824.
In November 1994, Mr. Petitti underwent an Air Force Medical Evaluation Board proceeding. R. at 695-96. He was provided a physical examination, which indicated that he had compression tenderness of the wrist and fingers with mild synovial bogginess1 in the fingers. R. at 696. Additionally, there was tenderness with range of motion of the shoulders, and right hip. Id. Mr. Petitti‘s medication for his RA was continued, but he showed no significant improvement. Id. For example, pain in his hands and feet increased. In May 1995, Mr. Petitti was honorably discharged and placed on the Temporary Disability Retired List (TDRL). R. at 1456-57.
B. Postdischarge
In May 1995, Mr. Petitti submitted a claim for VA disability benefits for RA. R. at 1452-55. In a June 1995 outpatient treatment record from the Rheumatology Clinic at the Madigan Army Medical Center in Tacoma, Washington, a military physician indicated that Mr. Petitti continued to complain of early morning stiffness, which improved with medication. R. at 1445. However, before each dose of medication was administered, his symptoms had also increased. Id. The physician examined Mr. Petitti and noted that he had a full range of motion in all joints with some traces of synovitis in the hands and right knee. Id.
In September 1995, a VA regional office (RO) granted disability compensation for RA and assigned a 20% disability rating for this condition under DC 5002, effective May 23, 1995, the date after he was sepa-
In September 1996, Mr. Petitti underwent a TDRL reexamination conducted by the Air Force Physical Evaluation Board in which he reported having episodes of morning stiffness in his joints that lasted anywhere from 20 minutes to as long as an hour. R. at 1433-35. On examination, he had a full range of motion throughout all his joints with no evidence of redness, swelling, effusion, or tenderness. R. at 1434. The diagnosis was seronegative nonerosive [RA] that is currently in remission. Id. The examiner noted that Mr. Petitti had a good response to medication; however, Mr. Petitti stated that he could not perform the fine hand movement required of his previous military job as an electronics technician or work in the private sector as a landscaper. Id. The examiner opined that it was unlikely that Mr. Petitti could return to active duty or resume his former occupations. R. at 1435. Finally, the examiner concluded that although [Mr. Petitti‘s] arthritis has been quiescent, the course of his arthritis is unpredictable and he could suffer a flare[up] in the future. Id. Mr. Petitti was ultimately discharged from the Air Force with disability severance pay. R. at 1436-37.
In June 2006, Mr. Petitti was seen and treated by a VA physician for complaints of increased stiffness in his feet, hands, wrists, elbows, and ankles. R. at 1360. Because of swelling of the hands and wrists in the mornings, he could not make a fist. Id. The swelling subsided during the day. Id. Mr. Petitti also stated that when the weather changed, his condition became more symptomatic. Id. Upon examination, the physician noted that Mr. Petitti‘s elbows and wrists were tender and that there was a trace of synovitis in the wrists. Id. Additionally, there was crepitus in the knees without effusion and tenderness in the toes. Id. The physician noted that Mr. Petitti had definite [g]elling3 and pain in his joints. Id. The physician remarked that Mr. Petitti was having a mild rheumatoid flare and ordered additional medication. Id.
In February 2007, Mr. Petitti filed a claim for an increased rating for RA. R. at 1394. A VA treatment note from that same month indicates that the main joints involved were his shoulders, elbows, wrists, hands, feet, and ankles. R. at 1361. A VA physician examined Mr. Petitti and found that he had synovitis of the right wrist with a trace of synovitis in his left wrist, and synovitis bilaterally in the joints of the hands. Id.
A March 2007 VA treatment note indicates that Mr. Petitti reported morning stiffness that lasted for 1 to 2 hours. R. at 1362. The VA physician examined Mr. Pet-
In April 2007, Mr. Petitti underwent a VA infectious, immune, and nutritional disabilities examination. R. at 1366-70. He reported that after a recent change in medication, his symptoms were stable. R. at 1367. The examiner noted that Mr. Petitti experienced general weakness and fatigue. Id. Mr. Petitti reported monthly flareups, which lasted for one day. Id. His last flareup occurred shortly before his examination. Id. He reported that he had more than six flareups in the past year. Id. The flareups affected his energy level, and he could not work more than 20 consecutive minutes without resting. R. at 1370. Additionally, Mr. Petitti reported painful joints in his hands. Id. His symptoms were worse in the morning upon awakening and improved during the day with activity. R. at 1367. He experienced increased pain when he wrote for more than 5 minutes. R. at 1369. During the examination, he reported having a dull ache in his hands. R. at 1367. He had a full range of motion in the hands, feet, and ankles, which did not decrease with repetitive motion. R. at 1368. However, Mr. Petitti reported that following repetitive motion testing he had stiffness in the hands. Id.
Further, the examiner indicated that Mr. Petitti had been employed full time, and during the past year, he had not lost any time from work. R. at 1369. However, he recently left his job as a delivery driver because he was afraid that while driving his joint pain would be exacerbated. Id. The examiner concluded that Mr. Petitti‘s RA had significant effects on his occupational ability because of decreased mobility, manual dexterity[,] lack of stamina, and increased tardiness. R. at 1370. Additionally, the examiner concluded that the RA affected Mr. Petitti‘s daily activities. Id. For example, the examiner indicated that Mr. Petitti‘s RA had a mild effect on recreation and travel and a moderate effect on sports and exercise. Id.
In May 2007, the RO denied Mr. Petitti‘s claim for a rating increase. R. at 1354-58. In September 2007, Mr. Petitti filed a Notice of Disagreement with that decision asserting that his RA was frequently exacerbated. R. at 1351. In support of his claim, he submitted to the RO a note from his treating VA rheumatologist stating that [o]ver the past year, [Mr. Petitti‘s RA] has worsened requiring additional medications to control his disease. R. at 1352. Mr. Petitti perfected his appeal to the Board. R. at 1302.
In August 2011, the Board remanded the claim with instructions that Mr. Petitti undergo a VA examination and obtain VA treatment records from March 2008 to the present. R. at 1260-66. These records showed that Mr. Petitti experienced morning joint stiffness and fatigue. R. at 491-92, 494, 1226, 1330. Mr. Petitti rated his morning joint pain a 6 and on a scale of 1 to 10. R. at 278, 1037, 1200-01, 1226. This pain lasted from 30 minutes to 3 hours. R. at 178, 186, 215, 278, 1037, 1056. During the day, the pain was reduced to a 4 and increased to a 5 by the evening. R. at 278.
Additionally, VA medical treatment records indicate that Mr. Petitti‘s RA medication caused recurrent rashes, with secondary infections, affecting many areas including his nose, right eye lid, scalp, trunk, thighs, and pubic area. R. at 1054, 1059, 1129-30, 1177-78, 1200-01. He also suffered from other symptoms that were attributed to his medication, including rapid heart beat, vertigo, dizziness, headaches, and blurred visions. R. at 1192. As a result of these side effects, his medication was periodically changed. R. at 1036. After receiving infusions of his lat-
In October 2011, Mr. Petitti underwent a VA examination. R. at 305-31. The examiner noted that Mr. Petitti had pain and stiffness in his joints, including the ankles, knees, hands, and back. Id. at 305. Mr. Petitti had a full range of motion of his joints, and the examiner remarked that there was no objective evidence of painful motion during the range-of-motion testing or following repetitive testing. Id. at 312-14, 318-20, 322-25. The 2011 VA examiner found that Mr. Petitti had painful joints and noted that his RA caused decreased mobility, weakness or fatigue, and pain. R. at 321.
In November 2012, the RO increased the disability rating for the service-connected RA to 40%, effective October 11, 2011, the date of the VA examination. R. at 436-44. In January 2013, the Board determined that Mr. Petitti was entitled to a 40% disability rating for the entire period starting in February 2007. The Board also denied a disability rating in excess of 40% for RA. R. at 427.
Mr. Petitti appealed the Board decision to the Court, and in July 2013, the parties filed a joint motion for remand (JMR), which the Court subsequently granted. R. at 395. The parties agreed that the Board did not provide an adequate statement of reasons or bases for its decision because the Board did not discuss whether Mr. Petitti was entitled to an additional, separate rating under
In September 2013, Mr. Petitti submitted an affidavit describing an increase in his symptomatology and pain. R. at 35-36. He stated that his arthritis affected every joint in his body, but that it was worse in his feet, ankles, knees, hips, fingers, and wrists. R. at 35. He noted that his joints are swollen and ached when he awakened. Id. He rated his joint pain as an 8 or 9 on a scale of 1 to 10. Id. Throughout the day, he suffered from a dull throbbing pain that he rated as a 4 to 5. Id. When he suffered severe flareups, the pain remained high throughout the day and lasted from 2 to 4 days. Id. He also stated that his RA limited his ability to stand, walk, and sit. Id. He became fatigued walking to the mailbox at the end of his driveway. Id. He could not sit for a long period without his joints swelling and aching. Id. He missed work 4 to 5 times a year with each absence lasting from 2 to 3 days. Id.
Additionally, Mr. Petitti submitted an affidavit from his daughter, who lived with him. R. at 33-34. She attested to her father‘s difficulties in functioning because of his joint pain, noting that he had difficulty holding a mug, preparing meals, and doing yard work. Id. She also observed that prolonged standing and walking aggravated his symptoms. Id.
On November 20, 2013, the Board issued the decision on appeal. R. at 2-23. The Board found that, throughout the period of the appeal, Mr. Petitti‘s disability has primarily been manifested by morning stiffness, pain, and periodic swelling of his hands, feet, ankles, elbows, wrists, shoulders, and spine; fatigue; and flare ups occurring as frequently as once a month to once every five or six months. R. at 16. Additionally, the Board found that there is objective evidence of stiffness, gelling, tenderness, and synovitis affecting multiple joints. Id. Further, the Board determined that Mr. Petitti‘s complaints of joint pain were credible and competent. R. at 20. Nonetheless, the Board determined that Mr. Petitti was not entitled to a disability rating higher than 40% under DC 5002. R. at 16-17. Additionally, the Board determined that because the VA
II. THE PARTIES’ ARGUMENTS
This case involves the interplay between
On the one hand, Mr. Petitti contends that the Board is required to consider all lay and medical evidence regarding pain. Appellant‘s Br. at 7-9; Appellant‘s Reply Br. at 7-9; Appellant‘s Supplemental Memorandum of Law at 1, 4-6. Mr. Petitti urges the Court to reverse the Board decision and argues that the Board‘s decision failed to take into account the lay evidence regarding Mr. Petitti‘s joint pain, which he experiences both at rest and while in motion during activities such as walking, standing, and sitting. Appellant‘s Br. at 7-9; Appellant‘s Reply Br. at 1.
The Secretary counters that under
III. ANALYSIS
The interpretation of a statute or regulation is a question of law, Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003), and the Court‘s review is performed de novo, Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004); see also Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (stating that the canons of statutory interpretation also apply to interpreting regulations). Regulatory interpretation begins with the language of the regulation, the plain meaning of which is derived from its text and its structure. See Sharp v. Shinseki, 23 Vet. App. 267, 271 (2009); see also McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008); Gardner v. Derwinski, 1 Vet. App. 584, 586 (1991) (Determining a statute‘s [or regulation‘s] plain meaning requires examining the specific language at issue and the overall structure of the statute [or regulation]. (citing Bethesda Hosp. Ass‘n v. Bowen, 485 U.S. 399, 403-05 (1988))), aff‘d sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff‘d, 513 U.S. 115 (1994). If the plain meaning of a regulation is clear from the language, that meaning controls and
A. Interplay Between DC 5002 and § 4.59
To resolve the questions before the Court, it is necessary to examine DC 5002 and
Title
As an active process:
With constitutional manifestations associated with active joint involvement, totally incapacity 100
Less than criteria for 100% but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods 60
Symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. 40
One or two exacerbations a year in a well-established diagnosis 20
For chronic residuals: For residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate under the appropriate diagnostic codes for the specific joints involved. Where however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.
Note: The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. Assign the higher evaluation.
For chronic residuals, the first sentence of DC 5002 provides that a claimant is to be evaluated under the DC that is appropriate for the specific joint involved. If the claimant has actual limitation of motion, which meets the criteria of the appropriate DC involved, he or she may be assigned the corresponding disability rating under the relevant DC. However, the second sentence of DC 5002 regarding chronic residuals goes on to state that limitation of motion that is noncompensable under the appropriate DC for the affected joint may still be compensable on the basis of a minimum disability rating for each major joint or group of minor joints affected. The last sentence of DC
Section 4.59 is one of several regulations that precede the rating schedule for the musculoskeletal system and explain how to arrive at proper evaluations under the DCs appearing in the disability rating schedule. See generally DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 591-93 (1991). Section 4.59, entitled Painful Motion, provides:
With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.
The first sentence of § 4.59 notes that painful motion is an important factor of a disability.4 The fourth sentence of the regulation goes on to state that it is the intent of the rating schedule to recognize that painful motion of a joint is capable of causing disability, and the fifth sentence ensures that a veteran experiencing an actually painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate DC to the joint involved.5,6
Hence, the plain language of DC 5002 and
B. Prior Court Interpretations
In Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991), this Court analyzed the relationship between
In Lichtenfels, the Court held that [r]ead together, DC 5003[] and
Further, it is important to view the Court‘s holding in this case in relation to Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In Mitchell, the appellant was seeking a disability rating increase in excess of 10% for the residuals of reconstructive surgery of the anterior cruciate ligament of the left knee. Because the limitation of motion of her knee was noncompensable under the appropriate DCs for flexion and extension of the knee, she was assigned a 10% disability rating under the second part of DC 5003 for painful motion of the knee.
Not satisfied with the minimum disability rating, Ms. Mitchell argued that because she experienced pain throughout the entire range of motion of her left leg, and because Lichtenfels held that painful motion is deemed limited motion, the Board should have considered that the motion of her left knee was completely limited and assigned the maximum disability ratings under the DCs for flexion and extension because her painful motion was equivalent to limited motion at those levels. Id. at 34. The Court in Mitchell specifically rejected this argument. The Court noted that the statement in Lichtenfels equating painful motion with limited motion was made in the context of a discussion of a minimum disability rating and did not suggest that maximum disability ratings were appropriate compensation for painful motion where the range of motion is not actually limited.8 Here, like Ms. Lichtenfels, Mr. Petitti is seeking the minimum disability rating. Thus, he did not have to show actual limitation of motion that corresponds to the requirements of the appropriate DC for the individual joints. Moreover, because Mr. Petitti is seeking only a minimum disability rating, the Court‘s holding here is consistent with Mitchell.
C. Painful Motion
Having concluded that DC 5002, when read in light of
At oral argument, the Secretary noted that the language of § 4.59 does not state that assignment of a minimum compensable disability rating for a joint requires objective evidence of painful motion. See May 5, 2015, Oral Argument Recording at 38:40-48. Nevertheless, the Secretary contends that, when § 4.59 and DC 5002 are read together, it is clear that objective evidence of painful motion is required. He takes this position because he contends that DC 5002 requires objective evidence of painful motion. The Court agrees that § 4.59 does not require objective evidence of painful motion. The regulation does not speak to the type of evidence required when assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to objective evidence.
Turning to DC 5002, that regulation states that [l]imitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. This sentence plainly requires that limitation of motion be objectively confirmed. Objective means perceptible to persons other than an affected individual. WEBSTER‘S at 1556; see also DORLAND‘S at 1309 (defining objective as perceptible to the external senses). To confirm means to give new assurance of the truth or validity of: CORROBORATE. WEBSTER‘S at 476. Hence, DC 5002 requires that limitation of motion must be corroborated by a person other than the veteran based upon that person‘s observations.
DC 5002 also describes the evidence that will objectively confirm limitation of motion. The verb confirmed is followed by the prepositional phrase by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. This phrase contains examples of evidence that indicate that a veteran has limitation of motion. The use of the words such as in the phrase connotes that the examples provided are incomplete and part of a nonexhaustive list. The first two examples, swelling and muscle spasm, are specific findings that, if present, objectively confirm limitation of motion. The series is completed by the third item: or satisfactory evidence of painful motion. Unlike the first two items, which are specific and require that a finding[] be made, the last is general and broadly worded so that it would include any information that adequately demonstrates that a veteran has painful motion. Hence, a doctor‘s observations of a veteran‘s painful motion—including that observed during range-of-motion tests—fall within the ambit of satisfactory evidence of painful motion.
However, contrary to the Secretary‘s assertions, lay statements or evidence may also be included within the umbrella of objectively confirmed evidence of painful motion. Because satisfactory evidence of painful motion is capacious, it not only includes a doctor‘s observations of a veteran‘s painful motion, but also encompasses lay descriptions of a veteran‘s painful motion. Observations from a lay person who witnesses a veteran‘s painful motion satisfies the requirement of objective and independent verification of a veteran‘s painful motion. Thus, the visible behavior or facial expression of a veteran observed by another may constitute satisfactory evidence of painful motion. Cf
Lay testimony may also consist of a veteran‘s own statements to the extent that the statements describe symptoms capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are generally competent to provide evidence on observable symptoms); see also
Our conclusion is buttressed by Lichtenfels, which is illustrative as to the evidence the Board must consider in determining whether painful motion is present. In Lichtenfels, the appellant was seeking a 10% disability rating for arthritis of the lumbar spine under DC 5003. Like DC 5002, limitation of motion under DC 5003 must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The evidence before the Board included a VA examination in which Ms. Lichtenfels had full range of motion of the lumbar spine without pain or tenderness. The VA examiner also found that she had a history of recurrent arthralgia.10 Additionally, Ms. Lichtenfels reported to the examiner that when she woke up in the morning, she experienced stiffness and aching all over her lower back, which improved during the day with activity. Lichtenfels, 1 Vet. App. at 485.
The Board denied Ms. Lichtenfels a minimum disability rating under DC 5003 for the lumbar spine on the basis that she had a full range of motion of the back without pain. The Court reversed the Board‘s finding as clearly erroneous and ordered that Ms. Lichtenfels be assigned a minimum (10%) disability rating for her lumbar spine because the evidence showed that she had backaches in the morning and recurrent arthralgia. Lichtenfels, 1 Vet. App. at 487. Thus, Lichtenfels found that, under DC 5003, a claimant‘s assertion of painful joints, confirmed by a VA examin-
Here, the record is replete with medical evidence and lay testimony regarding Mr. Petitti‘s actually painful joints. In September 2013, the appellant and his daughter submitted affidavits describing his actually painful joints and the effects of his pain on his daily activities, including standing, walking, and sitting. The Board described the affidavits as follows:
His daughter related that her father is walking slower and needing to take more frequent breaks from activities. She stated she has to provide him assistance, especially in the mornings. She mentioned the pain [Mr. Petitti] experiences and how it is worse during weather changes and during flare-ups. [Mr. Petitti] stated his joints are swollen and ache when he wakes up for about an hour or so. He described the pain as dull and throbbing and that it lasts all day. He stated that he has severe flare-ups about 3 to 4 times a year that will last 2 to 4 days at a time. He reported that his arthritis limits his ability to stand, walk and sit. He stated he is extremely fatigued and has trouble even walking to his mailbox. He indicated he works as a sales associate and his job requires two hours of walking a day. He related that he has about 4 to 5 absences from work a year and misses 2 to 3 days each time.
R. at 16. The Board found the lay evidence that RA is manifested by dull and throbbing joint pain competent and credible. R. at 16, 20. Additionally, the 2007 VA examiner found that Mr. Petitti had painful joints with decreased mobility, decreased manual dexterity, and lack of stamina. R. at 1370. A 2011 VA examiner made similar findings of painful joints and noted that Mr. Petitti‘s RA caused decreased mobility, weakness or fatigue, and pain. R. at 321. Based on the lay and medical evidence, the Board found that Mr. Petitti‘s disability has primarily been manifested by morning stiffness, pain and periodic swelling of his hands, feet, ankles, elbows, wrists, shoulders, and spine; fatigue; and flare-ups occurring as frequently as once a month to once every five or six months. R. at 16. Additionally, the Board found that there is objective evidence of stiffness, gelling, tenderness and synovitis affecting multiple joints. Id. In describing Mr. Petitti‘s disability picture, the Board found that [t]here is no doubt that pain exists that is daily and causes fatigue and stiffness. R. at 19.
Despite these findings, the Board determined that Mr. Petitti did not have painful motion of the joints because the VA examiner found that he did not have painful motion during range-of-motion tests performed on the joints. Id. The Court finds that the Board erred in concluding that painful motion may be established only by an examiner‘s findings on range-of-motion tests of the joints. Given the Board‘s finding that Mr. Petitti was credible, the Board‘s acceptance of the lay evidence from the veteran‘s daughter regarding her observations as to the effects of his joint pain on his daily activities, and the Board‘s notation as to the objective findings made by several VA examiners, the Court holds that the Board‘s conclusion that Mr. Petitti did not have objective evidence of painful motion of the joints is clearly erroneous. Indeed, the Board‘s specific findings regarding the evidence support the opposite conclusion: Mr. Petit-
On remand, Mr. Petitti is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet. App. 529, 534 (2002). A remand is meant to entail a critical examination of the justification for the decision by the Board. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with
IV. CONCLUSION
After consideration of the appellant‘s and the Secretary‘s briefs, and a review of the record on appeal, the Court will REVERSE the Board‘s finding that Mr. Petitti did not have objective evidence of painful motion, VACATE the November 20, 2013, Board decision, and REMAND the matter for further adjudication so that the Board may determine the proper disability rating for Mr. Petitti‘s RA.