CCK Successfully Appeals Board Decision to Deny Increased Rating that Uses Inadequate Examination Report
CCK Law: Our Vital Role in Veterans Law
Board Decides that Veteran does not Qualify for Increased Rating above 10% for Knee Arthralgia
CCK successfully appealed a Board of Veterans’ Appeals decision that denied the Veteran a rating for his left knee arthralgia above 10 percent. In denying an increased rating, the Board discussed the Veteran’s range-of-motion findings throughout the appeal period and noted that “[a]lthough examiners predicted that there would be additional loss of function on very prolonged use, none were able to quantify the additional loss of function.” The Board then concluded that the rating criteria for the next higher rating under diagnostic code 5260 would require a level of impairment “significantly more limiting than a reasonable hypothetical additional impairment on prolonged repetitive use.”
Court Vacates Board Decision after CCK Argues that Board Used Inadequate Examination Report and Fails to Discuss Additional Functional Impairment
On appeal, CCK argued that the Board failed to address whether the July 2015 examiner’s omission of range-of-motion measurements after repetitive-use testing, or his inability to estimate additional loss of motion during flare-ups, rendered the examination report inadequate. CCK also argued that the Board erred in failing to properly discuss the additional functional impairment resulting from flare-ups on the basis that the impairment could not be quantified. The Court vacated the Board decision and remanded the matter back to the Board for it to readjudicate the question of entitlement to a higher rating for the left knee disorder.
