Board Denies Veteran Rating in Excess of 10 Percent Due to Inadequate VA Examinations
CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied the Veteran a rating in excess of 10 percent for his knee disability. The VA examinations the Board relied on to deny a compensable rating under DCs 5260 and 5261, which are based on a loss of range of motion, were inadequate. While all examinations stated the Veteran’s left knee was subject to flare-ups, none of the examiners properly addressed that factor.
Court Agrees with CCK’s Argument that a VA Examination Should Evaluate a Condition During a Flare-Up if the Condition is Subject to Them
The Court noted that as a general matter, if a condition is subject to flare-ups, a medical examination should, if possible, evaluate the condition during a flare-up. Here, there was “nothing in the record to suggest that an examination during a flare-up” would be “impossible or impractical” because “the record reflects that a flare-up is routinely brought on by excessive walking or standing.” At a minimum, the Court determined the examiners should have opined whether pain could significantly limit functional ability during flare-ups, but none did so. The Board stated it did not ignore the Veteran’s reports of flare-ups with 100 percent disability during flare-ups, but asserted that this was inconsistent with the objective evidence of record.
CCK argued, and the Court agreed, that there was no basis for the Board’s assessment because there was no examination conducted during a flare-up of the knee disability and no examiner offered an opinion in that regard. The Court vacated the Board’s decision and remanded the case back to VA for the provision of an adequate medical examination.