Board provided an inadequate statement of reasons or bases for denying a separate rating for knee instability

Board provided an inadequate statement of reasons or bases for denying a separate rating for knee instability

The Veteran served on active duty in the United States Air Force from October of 1980 to October of 2000.  He was granted service connection for his left and right knee disabilities in January of 2001, effective November 2000.  By August of 2002, the Veteran was receiving a 10% rating for each of his knee disabilities.  In June of 2006, the Veteran filed a claim for an increased rating.  At that time, he was using a cane and walked with an antalgic gait.  VA denied his claim for an increased rating and the Veteran appealed.  During the time on appeal, the Veteran underwent several VA examinations, submitted lay evidence, and testified at a Board hearing.

Board denies increased rating for bilateral knee condition, including a separate rating for knee instability

In June of 2016, the Board denied a separate rating for knee instability. The Board acknowledged the lay evidence of instability of the knees, and found the Veteran credible and competent to report that his knee feels unstable, gives way, or locks.  However, the Board determined that the Veteran was not entitled to a separate rating for knee instability because the VA examiners could not identify or detect instability as to either knee. Furthermore, the Board found that the Veteran was not competent to objectively diagnose lateral instability or subluxation.

CCK appeals to the Court

CCK successfully appealed to the Court the June 2016 denial of an increased rating for the Veteran’s bilateral knee disability, to include a separate rating for knee instability.  In its decision, the Board misinterpreted and misapplied the law.  Additionally, the Board failed to provide adequate reasons and bases when it determined the Veteran’s service-connected left knee disability did not warrant a separate disability rating based on instability.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board provided an inadequate statement of reasons and bases for denying the appellant a separate rating for knee instability.  The Court held the Board did not sufficiently explain why it found the Veteran was not competent to discuss his symptoms of subluxation and instability.  Accordingly, the Court remanded the Board’s June 2016 decision denying a separate rating for knee instability.  The Court instructed the Board to provide an adequate statement of reasons and bases for whether the appellant should be awarded a separate rating under diagnostic code 5257.

Category: Court Wins