Correia v. McDonald, docket no. 13-3238 (July 5, 2016)

HELD: “[T]o be adequate, a VA examination of the joints must, wherever possible,[] include the results of the range of motion testing described in the final sentence of § 4.59.” This includes tests for both passive and active motion, in both weight-bearing and non-weight-bearing circumstances, and testing of the opposite, undamaged joint. 

SUMMARY: The veteran in this case appealed the denial of increased ratings for his knees. He argued that the VA examination report on which the Board relied to deny the increased ratings was inadequate because the examiner did not perform all the range-of-motion testing required by 38 C.F.R. § 4.59. To support this argument, the appellant’s attorney submitted two nonprecedential Court decisions showing the Secretary’s position in those cases.

The Secretary first moved to strike the portions of the appellant’s brief that cited to the nonprecedential cases. The Court denied this motion, finding that the decisions were not used for “precedential effect,” but rather to show the factual circumstances and the Secretary’s position in those cases. In a footnote, the Court noted that the rule regarding citation to nonprecedential authority was revised after the Secretary filed his motion, adding that the Court could have taken judicial notice of the Secretary’s contrary positions.

Regarding the regulation, the Secretary argued that it does not establish “a rigid set of protocols” for examinations, and alternatively argued that the regulation was ambiguous and therefore the Court should defer to VA’s interpretation of it.

The Court examined the plain language of the regulation and noted that it describes “ways in which painful motion can be discerned” and “the kind of test results that ‘should’ be obtained to permit an adjudicate to assess the effect of painful motion – range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances.” (emphasis in original). In addition, the regulation states that, if possible, the same tests should be obtained for the undamaged joint. The Court thus narrowed its analysis here to what the word “should” means.

The Court found that, in the context of § 4.59, the word “should” was ambiguous, and next questioned whether it should defer to the Secretary’s interpretation. The Court concluded that no deference was due to the Secretary’s “interpretation that the regulation creates no requirement that particular kinds of range of motion testing be performed” because the Secretary has previously conceded remand in “at least two cases” (nonprecential) “where the Board relied on medical evidence that did not comport with the final sentence of § 4.59.”

On its own, the Court found several additional cases where the Secretary previously interpreted § 4.59 “in accordance with Mr. Correia’s position” – and only found one other case where the Secretary argued that the regulation “does not create a testing requirement with which VA examiners must comply.” The Court thus stated that “given that the Secretary appears to ordinarily concede before this Court that § 4.59 creates a requirement for VA examiners to conduct the range of motion testing listed in the final sentence where such testing can be performed, the Court cannot conclude that the Secretary’s proffered interpretation in this case represents ‘the agency’s considered view on the matter.’” 

The Court thus held that “the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” The regulation identifies “three things examiners ‘should’ do” – “(1) carefully note facial expression or wincing on pressure or manipulation and relate that to the affected joint; (2) carefully note crepitation in the soft tissues or joint structures; and (3) test for pain throughout range of motion in various ways.” 

NOTE: On July 26, 2016, the Secretary filed a motion for reconsideration and/or full court review.