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Court Wins

Denial of Increased Rating for Right Knee Disability Contained Legal Error

Alyse Phillips

November 23, 2017

Updated: June 20, 2024

Court wins graphic increased rating 1 e1543946656101

Military History

The Veteran served honorably in the United States Army from September of 2003 to March of 2004 and from December of 2004 to January of 2007.  He was awarded the Purple Heart, Army Commendation Medal, and National Defense Service Medal, among other awards.  While serving in combat operations in Iraq, the Veteran suffered shrapnel wounds to his right knee when his Humvee was hit by an IED explosion.

Procedural History

In December of 2006 the Veteran filed a claim for service connection and compensation for residuals of his right knee injury.  He reported experiencing weekly flare-ups of his knee.  These flare-ups required him to rest and limited his activities.  In September of 2008, the Regional Office granted service connection for the right knee and assigned a 10% rating effective August 6, 2008.  In an April 2013 decision, the Board of Veterans’ Appeals remanded the issue of entitlement to an increased rating for the Veteran’s right knee disability for further development.  Subsequently, the Veteran underwent a VA examination for the right knee.  The examiner diagnosed limited flexion of the knee and noted that the right knee continued to bother the Veteran daily, with pain levels fluctuating from 3 to 5 out of 10 on the pain scale.

Board denied increased rating for right knee disability

The Board issued the decision currently on appeal on April 11, 2016.  The decision denied entitlement to an increased rating in excess of 10% for the Veteran’s service connected right knee disability.  The Board noted the VA examiners’ range of motion findings, but concluded that a preponderance of the evidence was against any higher or separate rating for the right knee.

CCK appeals to the Court

CCK successfully appealed to the Court the Board’s denial of an increased rating in excess of 10% for a right knee disability.  The Court found that the Board erred in relying on inadequate VA examinations.  Specifically, the VA examiners failed to test the Veteran’s knee on both active and passive motion, and in weight-bearing and non-weightbearing positions, as required by VA regulation and case law.  The Court also found that the Board failed to provide an adequate statement of reasons or bases for its reliance on these examinations.  Thus, the Court vacated that part of the Board’s decision and remanded the matter for readjudication.

To read the Court’s decision, click here.  

About the Author

Bio photo of Alyse Phillips

Alyse is a Supervising Attorney at Chisholm Chisholm & Kilpatrick. Since joining the firm in August of 2016, she has specialized in representing disabled veterans and their dependents before the United States Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Alyse