Tedesco: Severe Painful Motion as opposed to Limitation of Motion

Tedesco v. Wilkie, Case Number 18-1805, decided August 16, 2019 considers the term Severe Painful Motion in DC 5055.

Diagnostic Code 5055, which covers knee replacements, provides for a 60% rating for “Chronic residuals consisting of sever painful motion or weakness in the affected extremity.”  The veteran reported experiencing significant pain in both knees and left knee pain "all the time" and knee pain 6 hours a day and relying on a walker to get around.  Id. at *2.  The

Board found:

appellant's range of motion was "at worst 95 degrees of flexion and 0 degrees of extension." R. at 6. The Board concluded that a "higher or separate [intermediate] rating is not warranted based on limitation of motion." R. at 7. Because the appellant's left knee did not warrant more than a minimum rating for painful motion under the other DCs for limitation of motion, the Board found that no intermediate rating was warranted under those DCs and that it was "more favorable for him to retain his currently assigned 30[%] minimum disability rating" under DC 5055. Id. Additionally, the Board noted that it  cannot find that chronic residuals consisting of severe painful motion or weakness in the affected extremity are present such that a disability rating of 60[%] under [DC] 5055 is warranted." Id. The Board specifically found that, "while the [appellant] did experience pain in the left knee, his range of motion was not limited to compensable levels." Id. The Board observed that VA examiners found moderate weakness and normal strength. Id. Thus, the Board concluded that a "disability rating in excess of 30[%] cannot be granted," id., because his disability "did not rise to the level of severe painful motion or weakness."

Id. at *2.

The veteran argued the VA had conflated the terms severe painful motion with limitation of motion whereas the Secretary argued “the Board was required to consider limitation of motion in deciding the appropriate rating under DC 5055. The Secretary asserts that a disability rating is assigned based on the loss of earning capacity and because a knee becomes impaired most commonly by limitation of motion, it follows that in evaluating the disability level caused by pain, limitation of motion is a critical factor to be considered.”  Id. at *4.

The Court focused on the plain language of DC 5055 and determined severe painful motion and limitation of motion are distinct concepts.  It noted that the 60% rating did not require limitation of motion whereas lower intermediate level ratings under DC 5055 did require limitation of motion, which meant the Secretary knew how to use the terms differently but wrote DC 5055 as it did.

The Court then wrote:

Therefore, to the extent that the Board in this matter substituted a requirement of limitation of motion for the severe-painful-motion analysis contemplated by DC 5055, the Board erred. See Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) (finding Board error where it misapplied the terms of the applicable DC). This is not to say that the Board is precluded from considering objective tests for limitation of motion in evaluating service-connected residuals of a knee replacement under DC 5055, but to adequately assess the degree of painful motion under DC 5055, the Board must do more than merely cite those test results and state the corresponding evaluation under the pertinent limitation-of-motion DC. Simply stated, limitation of motion is but one factor when assessing the disability commensurate with "severe painful motion."

Id. at *6-7.

In the case at hand, “[t] he Board found that severe painful motion was not present because the appellant's "range of motion was not limited" by pain. Id. This is not what DC 5055 requires for a 60% rating; it is severe painful motion, not limitation of motion, that is required.”  Id. at *7.  The Court also challenged the Secretary and stated:

As a final matter, the Court notes, without deciding, that the Board may need to explain what it understands "severe" to mean as it is used to describe painful motion and  weakness at the 60% disability level. This Court has made clear that the Board cannot base its rating decisions on undisclosed standards. See Johnson v. Wilkie, 30 Vet.App. 245, 254-55 (2018). Doing so amounts to nothing more than the Board saying that a veteran is not entitled to certain benefits "'because I say so.'"

Id. at *7.

The Court also considered lateral knee instability.  In this case, the Board noted veteran reports of knee instability but found medical findings more probative.  Id. at *8.  The Court noted “the Board's explanation appears to rely on an understanding that medical evidence is inherently more probative under DC 5257, which this Court has rejected.”  Id. at *8.  Thus, the case was remanded on both the DC 5055 (severe painful motion) and DC 5257 (instability) arguments.

This case underscores the fact the VA often does not fully accept a veteran’s complaints of pain when assigning a rating.  It is important to continue appealing these types of cases and thus holding the VA to account. 

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

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Fears: Medical Examiner Competence Presumed Unless Challenged Before the Agency

Fears v. Wilkie, Case Number 17-2345, decided August 12, 2019 discusses the presumed competence of a VA medical examiner and reaffirms that such competence is presumed unless challenged at the Board level and typically cannot be raised initially before the Court.

This involves a Dr. Wilhelm who the Court noted had been discharged from an Army medical residency program and later linked in some news articles as possibly having a role in the mishandling of VA examinations.  Id. at *2.  The veteran was denied service connection for hepatitis mostly upon the basis of an opinion by Dr. Wilhelm. 

The veteran argued under offensive collateral estoppel, VA was precluded from relying on Dr. Wilhelm’s medical opinion of the examiner’s litigation history.  Id. at *4.  The Court noted the veteran did not specifically challenge the adequacy of his medical opinion in his principal brief, but in his reply and that thus the Court would  not entertain those arguments. 

The Court began by discussing the presumption of competence as related to VA medical examiners, it explained:

The presumption of competence is rooted in in the presumption of regularity, which "provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." This presumption of regularity requires courts "to presume that what appears regular is regular." And it shifts the burden to the party seeking to rebut the presumption "to show the contrary."38 In this context, showing the contrary "requires nothing more than is required for veteran[-]claimants in other contexts—simply a requirement that the veteran raise the issue" before VA.  "Given that one part of the presumption of regularity is that the person selected by . . . VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications." Whether the presumption has been rebutted is inherently a question of fact the Court will review for clear error. Under this clear-error standard, we may overturn the Board'sfinding only if there is no plausible basis in the record for the Board's decision and the Court is "left with the definite and firm conviction that" the Board's decision was in error.  Today, however, we address the scope of the Wise exception, a legal question distinct from the question whether the presumption of competence has been rebutted in a specific appeal. We review questions of law such as this without deference to the Board. Moreover, the Board must provide a statement of the reasons or bases for all its material determinations of law and fact "adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court."

Id. at *4-5.  The Court then discussed how the case law evolved as to this issue, highlighting Federal Circuit and Veterans Court cases, which principally seem to assert that a veteran must raise the issue of the examiner competence before the agency or Board before arguing it to the Court. 

It ended with a discussion of the recent cases Wise v. Shinseki and Francway v. Wilkie.  Wise is an unusual case that should never have been defended by the VA where the examiner explicitly stated in her opinion she did had no training or background in psychiatry and her opinion was no more than a laypersons.  The Wise court found it unreasonable for the Board to rely on the examiner’s opinion even though the issue of examiner competence had not been raised to the Board.  The Fears Court described the Wise case as a “limited exception to the requirement that claimants expressly challenge

VA's selection of a medical examiner before the Board, relieving them of this obligation where there are facially obvious issues of competence.”  Id. at *9.  Meanwhile Francway was a Federal Circuit case where the veteran failed to challenge the choice of an internist for a back examination while before the agency.  The Federal Circuit in Francway explained:

“[t]he presumption of competency requires nothing more than is required for veteran claimants in other contexts—simply a requirement that the veteran raise the issue."

"[O]nce [a] veteran raises a challenge to the competency of a medical examiner," the court said, "the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications." But the court also explained that claimants' burden of rebutting the presumption must be offset by "the ability to secure from the VA the information necessary to raise the competency challenge." Thus, once a claimant requests information about an examiner's qualifications, he or she "has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist."

Id. at *10.

In the case at hand, the Veterans Court determined there was no explicit admission of incompetence or anything in the record to independently demonstrated an irregularity.  Id. *11.  As to the prior litigation and news articles about Dr. Wilhelm, the Veterans Court determined they were not in the record and could not be considered by the Court.  The Court seems to focus on two prongs to a finding that something should constructively be in the record: (1) are the records within the Secretary’s control and (2) could they reasonably be expected to part of the record.  It did not affirmatively answer part one but was clear that part two was not met in this case. 

The Court did note: “as the Secretary recognized at oral argument, if the appellant had

properly submitted these documents to the Board, the Board likely would have been required to discuss them, even if the appellant had not expressly raised the argument.

The Secretary's concession is consistent with the Federal Circuit's comment in Francway that the Wise exception is not limited to the precise facts of that case but also concerns those parts of the record that "independently demonstrate[] an irregularity in the process of selecting the examiner."

In its opinion the court was clear the need to raise the issue of an examiner’s competence applies to pro se litigants.  So, the takeaway from this case is likely that you as a pro se veteran and we as practitioners should start (1) asking for CVs of examiners and (2) in our Board memorandum challenge the practitioner’s competence.  I am troubled by the restrictive notion of what was in the record.  It seems an explanation of why the Court would not take judicial notice of the prior case involving Dr. Wilhelm is in order.  I would argue for something less than requiring both records be in the Secretary’s control and that they reasonably be expected to be part of the record.

Decision by Judge Allen and joined in by Judges Schoelen and Toth.

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Payne: Informal Claims for SMC(k), Bifurcation of a TDIU Claim, and More

Payne v. Wilkie, Case Number 17-3439, decided August 9, 2019 affirmed and remanded in part a Board decision that discussed several issues.  It remanded as related to whether a formal claim had to be filed for a SMC(k) and whether a claim for TDIU was before the Board.

SMC(k) Claim

The Board stated it did not have jurisdiction over entitlement to SMC(k)(erectile dysfunction) arguing both a requirement to file a formal claim and that a multi-link causal chain (as found here) prevented entitlement to SMC(k).  The Court disagreed and explained:

In sum, the Court holds that the plain text of section 1114(k) does not limit potential entitlement to SMC(k) to veterans with certain service-connected disabilities or preclude a theory of entitlement based on a multi-link causal chain between the service-connected disability and the anatomical loss or loss of use of one or more creative organs; and that ends the matter. See Procopio v. Wilkie, 913 F.3d 1371, 1375 (Fed. Cir. 2019).  Accordingly, the Court is not persuaded by the Secretary's argument that the appellant's expressly raised theory of causation—that the upper extremity disabilities "materially contributed to his development of conditions, such as obesity and [service-connected] cardiovascular disease, associated with [ED]"—was, essentially, too tenuous for the issue of entitlement to SMC(k) to be before the Board as a potentially ancillary benefit to the upper extremity claims on appeal.

Id. at *10.

The Court also considered whether a post-2014 version of 38 CFR Section 3.155, which required all claims for VA benefits be filed on a standardized form thus ending the practice of allowing informal claims for benefits, applied to this set of facts.  The Court concluded:

In sum, because the plain text of § 3.155(d)(2) does not require that a claimant file a formal claim to assert entitlement to SMC(k) and, as previously discussed, the plain text of section 1114 does not preclude the appellant's causal theory of entitlement to SMC(k) as a potentially ancillary benefit to his service-connected upper extremity claims, the Board erred when it declined to adjudicate the explicitly raised issue of entitlement to SMC(k).

Id. at *12.

TDIU Effective Date

The VA had granted TDIU with an effective date of March 2005, which was the date of an application for TDIU.  The Secretary maintained the issue was not before the Board because the VA bifurcated the issue in an April 2005 decision which was not appealed.  The Court noted: “the Court in Rice explained that ‘a request for TDIU . . . is not a separate claim’ and that, ‘[w]hen entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.’”  Id. at *14.  The Court also turned to Harper v. Wilkie,30 Vet. App. 356, 359 (2018), which discusses bifurcation.  The Court explained:

The Secretary's argument—that the April 2005 RO decision served to bifurcate the issue of TDIU from the appellant's claim for benefits for the upper extremity disabilities, thereby removing it from appellate status and requiring the appellant to file an NOD as to that decision—is controlled by the Court's recent decision in Harper.  In Harper, the Court held that, where the issue of TDIU was part and parcel of the appellant's appeal for a higher initial disability rating for his underlying mental condition, the award of TDIU for a portion of the appeal period "'did not serve to bifurcate the appeal, but instead served simply to partially grant [Mr. Harper's] request for TDIU.'" 30 Vet.App. at 360-61 (quoting Palmatier v. McDonald, 626 F. App'x 991, 995 (Fed. Cir. 2015)). The Court reasoned that the appellant's "NOD placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to the effective date of the partial grant] remained on appeal." Id. at 362. Similarly, in this case, the RO's award of TDIU effective from March 2005 served as a partial grant of benefits and did not bifurcate the issue of TDIU from the appeal of the initial disability rating for the upper extremity disabilities. Thus, consistent with Harper, here, the Board had jurisdiction to consider the issue of TDIU prior to March 2005, which remained in appellate status.

Id. at *14.

The Court noted the VA had tried to argue that Harper concerned a partial grant of TDIU occuring after the Board adjudicated the underlying claims whereas here the partial grant of TDIU occurred before the Board adjudicated the first appeal of the underlying claims.  But, the Court found the distinction did not make a meaningful difference.

Other Issues

The veteran also argued the Board erred in not ordering a new examination in light of muscle wasting.  The Court acknowledged that the duty to assist might require a new examination but that such a duty is triggered when the appellant comes forward with some evidence that there has been a material change in the disability since the last examination.  Id. at *16.  It noted neither a bald assertion of change or the mere passage of time is sufficient.  Id.  The Court denied the error and seemed to rely substantially on the fact that the currently assigned rating contemplated muscle atrophy.

The veteran also attempted an argument that problems in this legs might justify a higher arm rating that was rejected by the Court and the Court also rejected the reasons and bases argument related to extraschedular consideration based on a Thun step two analysis (or lack of argument as to Thun, step two).

Some important takeaways from this case:  First, an a multi-link causal connection is possible if properly argued and supported.  Second, amended Section 3.155 does not require a formal claim for ancillary benefits.  Third, TDIU is an inferred claim and as such likely to survive a bifurcation argument by the VA.

The decision was by Judge Meredith and joined in by Chief Judge Davis and Judge Bartley.

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