Bilateral knee disability denial contained error by BVA

Bilateral knee disability denial contained error by BVA

Summary

The Veteran served in the United States Army from 1972 to 1974.  During service the Veteran fell and injured both his knees, leading to chronic knee pain.  In April of 1974, he filed a claim seeking service connection for his bilateral knee disability and was granted a noncompensable rating in July.  After many years of appeals, the Veteran was granted an increased rating of 10% for his bilateral knee condition.  In December of 2006, he filed a claim for an increased rating for his bilateral knee condition above 10%, and his rating was increased to 20% in November of 2007.  After another few years of appeals, including a proposed reduction in his disability rating, the Veteran appealed to the Board of Veterans’ Appeals, seeking an increased rating in April 2014.

Board denies increased rating for bilateral knee disability

In February 2016, the Board of Veterans’ Appeals issued a decision denying the Veteran entitlement to an increased rating in excess of 20% for his bilateral knee condition.   The Board found that the Veteran’s bilateral knee disability did not warrant an increased rating, maintaining that his range of motion was not sufficiently limited to require additional disability compensation per VA regulations.

The Court agrees with CCK’s arguments

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied the Veteran entitlement to separate ratings for osteoarthritis of his knees, in addition to his service-connected bilateral knee disability.  The Veteran was diagnosed with osteoarthritis of his bilateral knees after an x-ray.  In 2015, a VA examiner documented pain and instability with motion in the results of his VA exam.  In its decision, the Board stated the Veteran failed to meet the range of motion limitations required for a compensable rating in order to receive separate ratings for his osteoarthritis and his bilateral knee disability.

CAVC sets aside Board’s denial

CCK argued, and the Court agreed, that the Board erred in finding that the Veteran did not have a limited range of motion of his knees.  Specifically, under the law, painful motion caused by arthritis is deemed to be limited motion and would entitle the Veteran to a minimum 10% rating in addition to his existing bilateral knee disability ratings.  The Court accordingly vacated and remanded the Veteran’s appeal for the Board to properly apply the law and to provide an adequate statement of the reasoning behind its decision.

To read the Court’s decision, click here. 

Category: Court Wins