English: Lay Evidence, Medical Evidence and Knee Instability

English v. Wilkie, Case Number 17-2083, decided November 1, 2018 considers a rating of knee instability when there are statements by the veteran complaining of knee istability but the medical examinations do not find such instability.

The Court determined:

As to lateral instability under DC 5257, as discussed below, we find significant that in Petitti v. McDonald, the Court held that when a "regulation does not speak to the type of evidence required . . . [it] certainly does not, by its terms, restrict evidence to 'objective' evidence." 27 Vet.App. 415, 427 (2015). DC 5257 doesn't speak to the type of evidence required and, thus, objective medical evidence isn't required to establish lateral knee instability under that DC. The Board can't categorically find objective medical evidence more probative than lay evidence with respect to this DC without supporting its conclusion with an adequate statement of reasons or bases.

Id. at *1-2.

In this case, the Board’s analysis stated  it had “reviewed all of the evidence in the [v]eteran's claims file, with an emphasis on the medical evidence for the issue on appeal." Id. at *4.  The Court then explained:

The most natural reading of the decision on appeal is that the Board was working under the impression that objective medical evidence of lateral knee instability is required. The Board began its analysis section with the statement that it put "emphasis" on the medical evidence of record. R. at 8. The Board didn't explain why it did so. At other points, it appears that the Board determined that objective medical evidence is categorically more probative than lay evidence under DC 5257 with respect to lateral instability of the knee. And its statement, that "even if the [v]eteran sincerely believes that his knee experiences instability, instability itself, can be clinically tested for and diagnosed," only augments this suggestion that the Board didn't consider—or at least didn't consider fully—the lay evidence of lateral knee instability. R. at 10. To the extent the Board may have favored objective medical evidence over lay evidence, without any supporting reasons or bases for that finding, the Board erred.

In that regard, nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence. 38 C.F.R. § 4.71a, DC 5257. Thus, under Petitti, "[it] certainly does not, by its terms, restrict evidence to 'objective' evidence." 27 Vet.App. at 427. The Board appears to have read a requirement into DC 5257 that's not there.

Id. at *5-6.

The Court then considered if the Board simply determined lay evidence of instability was not competent and determined that would also be error because:

the Board didn't explain on what basis it may have implicitly concluded that, on the question of lateral instability, medical evidence is categorically more probative than lay evidence or that lay evidence is not competent at all. If the Board decides that lay evidence isn't competent on this question, it must do so clearly and with an appropriate supporting rationale. We caution the Board on remand that, when assessing whether lateral knee instability is the type of symptom about which a lay person is competent to testify, it must remain cognizant of the prohibition on making independent medical judgments.

Id. at *6.

The Court also considered functional loss should have resulted in a higher rating that frequent flare-ups that limited his mobility and standing and resulted in the use of a brace and cane resulted in a disability picture best approximating a higher rating.  The agreed the Board did not adequate explain its conclusion when the Board simply stated: “limited mobility/decrease[d] range of motion is appropriately contemplated within the criteria. As such, the Board does not find that an increased rating is warranted for the [v]eteran's noted functional loss in excess of the provided 10 percent already granted for painful and limited motion.”  Id. at *8.  The Court noted the Board did not address whether functional loss during flare-ups limited motion equivalent to the next higher rating and did not address some favorable evidence.  Id. at *8. 

This is a helpful decision to veterans as it is not unusual for veterans to have many complaints of instability in the records and yet the C&P examiner still does not record that instability.  This case will provide a roadmap toward winning those cases.  The case also shows that the VA really is required to drill down into the result of functional loss on flare-ups, something they rarely do well.

The decision was by Judge Allen, joined in by Judges Schoelen and Meredith.

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