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Court Wins

Denial of increased ratings rested on inadequate VA examination, improper treatment of lay evidence

April Donahower

April 3, 2018

Updated: June 20, 2024

increased rating


The Veteran served honorably in the United States Navy from September 1970 to April 1990.  While on active duty, he twisted his left knee playing baseball, tearing his medial meniscus and requiring a meniscectomy.  He subsequently injured his back in service.  After service, his knee had significant functional effects on his work as a maintenance manager.  His back condition worsened, and he experienced numbness in his legs.

Although he learned many ways to compensate for his limitations, making the wrong move caused extended periods of pain.  During a flare-up, he estimated losing an additional “80 [percent] of his back motion/function” and was able to do little more than “limp down the hallway.”  He retired in January 2012 because of lower back pain and spasms and bilateral neuropathy in his feet as he felt he was a liability to his employer.

Board denied increased ratings

The Veteran submitted a claim for service connection for low back and left knee conditions, tinnitus, and peripheral neuropathy of the lower extremities.  The Regional Office then granted service connection for these conditions.  In October 2014, the Board remanded those claims as well as the issue of entitlement to Total Disability Based on Individual Unemployability (TDIU).  In August 2016, the Board denied the Veteran’s claim for increased ratings, denying a rating in excess of 20 percent for low back strain, a rating in excess of 10 percent for a left knee disability, and entitlement to TDIU.

CCK appeals denied increased ratings to the Court

CCK successfully appealed to the Court the denial of increased ratings for the Veteran’s back and knee disabilities and TDIU.  With regard to the low back disability, the Board found that objective test results and clinical findings did not show functional loss that approximated the next higher rating.  With regard to the left knee disability, the Board assigned a 10 percent rating for limitation of extension and denied a separate rating for instability for lack of “any clinically verifiable findings.”

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board impermissibly relied on the report of an examination of the Veteran’s back made by an examiner who did not adequately explain why she could not provide an opinion regarding functional loss.  The examiner’s only stated reason was that any attempt to estimate functional loss would be speculative based on her experience.  The Court also agreed with CCK’s argument that the Board improperly treated the Veteran’s competent descriptions of his left knee problems.

The Court reasoned that although the Board acknowledged the Veteran’s complaints of knee instability and found him competent to report that his knee was unstable, the Board offered a confusing explanation as to why the medical evidence outweighed the Veteran’s complaints.  Finding that the Board “seemed to implicitly require” objective evidence, the Court found the Board’s reasoning inconsistent: on one hand, it found the Veteran competent to report that his knee was unstable despite his lack of expertise, and on the other, it found examiners’ reports highly persuasive because they had medical expertise.  Finally, the Court agreed that the Board was not permitted to summarily reject competent and credible lay evidence solely because it was not ‘objective’ in nature.  Accordingly, the Court vacated the Board’s decision.

Click here to read the Court’s decision. 

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

See more about April