Correia v. McDonald

28 Vet. App. 158, 2016 U.S. Vet. App. LEXIS 1015, 2016 WL 3591858
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 5, 2016
DocketNo. 13-3238
StatusPublished
Cited by140 cases

This text of 28 Vet. App. 158 (Correia v. McDonald) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Correia v. McDonald, 28 Vet. App. 158, 2016 U.S. Vet. App. LEXIS 1015, 2016 WL 3591858 (Cal. 2016).

Opinion

HAGEL, Chief Judge:

Jeffrey W. Correia appeals through counsel a September 30, 2013, Board of Veterans’ Appeals (Board) decision that denied entitlement to (1) an increased disability rating for a right knee disability prior to October 21, 2008, described as post-operative meniscectomy with traumatic arthritis, currently rated 30% disabling, irrespective of post-surgical periods of 100% disability ratings; (2) an increased disability rating for a right knee disability from October 21, 2008, described as a postoperative total knee arthrotomy with traumatic arthritis, currently rated 30% disabling; and (3) an increased disability rating for a left knee disability, described as degenerative joint disease, currently rated 20% disabling. Mr. Correia’s Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a).

On April 15, 2015, this matter was referred to a panel of the Court to determine the proper interpretation of the final sen-fence of 38 C.F.R. § 4.59. On June 1, 2015, the proceedings in this matter were stayed, pending the resolution of Petitti v. McDonald, Vet.App. No. 13-3469. On October 28, 2015, the Court issued its decision in Petitti v. McDonald, 27 Vet.App. 415 (2015), and on November 18, 2015, the stay of proceedings in this case was lifted. The parties submitted supplemental mem-oranda of law in December 2015 and February 2016.

Because the final sentence of § 4.59 requires that the listed range of motion testing be conducted to the extent practicable in all cases involving joint disabilities, and because such testing was not performed in this case, the Court will vacate the September 2013 Board decision and remand the matter for further development and readjudication consistent with this decision.

I. FACTS

Mr. Correia served on active duty in the U.S. Navy from March 1974 to May 1975. Immediately following his discharge from service, Mr. Correia applied for VA disability compensation benefits for a right knee disability. In August 1975, a VA regional office granted his claim and assigned a 10% disability rating for the postoperative residuals of a right knee menis-cectomy with traumatic arthritis. Mr. Correia did not appeal that decision, and it became final.

In July 1994, Mr. Correia sought an increased disability rating for his right knee condition. In December 1994, the regional office assigned Mr. Correia a temporary total evaluation for surgical convalescence1 between September 16 and October 31, 1994, but otherwise denied entitlement to a disability rating in excess of the 10% already assigned. Mr. Correia [161]*161filed a Notice of Disagreement with that decision and ultimately appealed to the Board, requesting a personal hearing.

In December 1995, Mr. Correia underwent a VA orthopedic examination that found degenerative joint disease of the right knee with severe crepitus, laxity, and marked decrease in extension and function. Based on that examination, in July 1996 the regional office increased Mr. Correia’s right knee disability rating to 30%. The rating decision contained the following notation: “THIS IS A COMPLETE GRANT OF BENEFITS SOUGHT ON SUBSTANTIVE APPEAL.” Record (R.) at 1043. In its August 1996 letter advising Mr. Correia of its decision, VA stated that it had “granted” Mr. Correia’s claim for an increased disability rating, R. at 1040, and then informed him:

All benefits claimed have been allowed without consideration by the Board of Veterans Appeals. Because of this, no further consideration will be taken on your [SJubstantive [A]ppeal[,] which is considered resolved.
[[Image here]]
If you think our decision is wrong, you should write and tell us why. The enclosed VA Form 4107 explains your right to appeal.

R. at 1041 (emphasis omitted). The record contains an August 1996 deferred rating decision that acknowledges that Mr. Corr-eia requested a hearing on his Substantive Appeal form, and then in response to the handwritten question, “Does vet still want hearing?” a handwritten, circled response states, “No.” R. at 1039.

In November 2002, Mr. Correia submitted claims for an increased disability rating for his right knee disability and entitlement to benefits for a left knee condition secondary to the right knee disability.

In March 2003, Mr. Correia underwent a VA joints examination. The examiner diagnosed severe degenerative joint disease of the right knee and moderate degenerative joint disease of the left knee, caused by an increased load on that knee due to the service-connected right knee condition. Accordingly, in May 2003, although the regional office denied entitlement to a disability rating in excess of 30% for the right knee disability, it granted benefits for the left knee condition secondary to the right knee disability and assigned a 20% disability rating for that condition. Mr. Correia did not appeal that decision, and it became final.

In October 2007, Mr. Correia sought increased disability ratings for his bilateral knee disabilities. In December 2007, he underwent a VA orthopedic examination to address these claims, which resulted in a diagnosis of “[sjtatus post[-]menisceetomy times two of the right knee,” R. at 798, and a normal left knee, R. at 799. Based on that examination, in January 2008, the regional office denied Mr. Correia’s claims for increased disability ratings. Mr. Corr-eia filed a Notice of Disagreement with that decision and ultimately appealed to the Board,

VA obtained medical records in February 2009. They included a February 2008 VA physical therapy consultation note stating that Mr. Correia’s knees buckled when he walked on uneven surfaces and a March 2008 VA orthopedic consultation note that documented knee buckling and locking, along with the use of a right knee brace.

In November 2011, Mr. Correia testified at a hearing before a Board member. The Board member outlined two issues for consideration: “Entitlement to an increased rating for status post total right knee replacement, which is at 30[%] and entitlement to an increased rating for degenerative joint disease of the left knee which is [162]*162at 20[%].” R. at 226. Mr. Correia testified to the functional impairments caused by his knee disabilities and discussed what he saw as inadequacies in the VA medical examinations he had been provided.

In May 2012, the Board remanded Mr. Correia’s claims for de novo adjudication “of all pertinent evidence.” R. at 213.

In September 2012, Mr. Correia underwent another VA orthopedic examination. The examiner reviewed Mr. Correia’s medical history, described the effect of his knee disabilities on his gait, noted the effects of flare-ups, conducted various range of motion studies and muscle strength tests, and considered the functional impairment caused by Mr. Correia’s knee disabilities. Specifically, Mr. Correia reported weekly flare-ups of “intense pains that bring him to tears,” R.

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Bluebook (online)
28 Vet. App. 158, 2016 U.S. Vet. App. LEXIS 1015, 2016 WL 3591858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/correia-v-mcdonald-cavc-2016.