Bilateral knee condition denial contained legal error, Court finds

Bilateral knee condition denial contained legal error, Court finds

Summary

The Veteran served on active duty in the U.S. Navy from November of 1982 to January of 1990 and from November of 1992 to March of 2003.  He filed a claim for service connection for a bilateral knee condition in February of 2003.  VA granted service connection with a 10% evaluation for both knees in September of that year.  In January of 2010, the Veteran filed a claim for an increased rating for his bilateral knee disability.  He claimed that his bilateral knee condition had worsened and that he experienced knee pain, swelling, clicking, and popping.  His claim for an increased rating was initially denied in May of 2010.  The Veteran appealed this denial, and went through a series of examinations leading up to a Board decision in September of 2016.

Board denies increased rating for bilateral knee condition

In its September 2016 decision, the Board of Veterans’ Appeals reclassified the diagnostic code under which the Veteran’s knee disability was rated.  In other words, the Board used a different diagnostic code to determine the Veteran’s disability rating.  The Board denied him entitlement to an increased or separate rating based on instability of the knees.  It found that the Veteran’s disability was properly rated by diagnostic code 5260, which is based on limitation of flexion, and determined that a separate rating under diagnostic code 5257, which contemplates instability, was not warranted.

CCK appeals to the Court

CCK successfully appealed the Board’s denial of a separate or increased rating for the Veteran’s bilateral knee disability to the Court of Appeals for Veterans Claims.  In its decision, the Board relied on the fact that objective VA examinations did not show instability of the Veteran’s knees.  It failed to explain how the Veteran’s reports of instability factored into its decision that a separate rating was not warranted.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in relying solely on the objective medical evidence that did not show instability of the Veteran’s knees, while not addressing the Veteran’s statements about his condition.  CCK pointed out that diagnostic code 5257 does not require objective evidence to demonstrate instability, and the Board therefore erred by failing to consider the Veteran’s lay reports of instability or explain why they were entitled to less probative weight than the VA examinations.  The Court also held that it was error for the Board to assess the probative value of the Veteran’s use of assistive devices, which was attributed to instability by at least one medical professional during the course of the appeal.  The Court set aside the Board’s decision and remanded the issue of entitlement to a separate or increased rating for the Veteran’s bilateral knee condition to the Board for readjudication.

Category: Court Wins