Thursday, November 3, 2011

Single Judge Application, Shade, 24 Vet.App. at 121; Issue of Reopening

Excerpt from decision below: "In Shade, the Court held that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Shade, 24 Vet.App. at 121. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2756 HENRY ALFREDSON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before IVERS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. IVERS, Judge: The appellant, Henry Alfredson, appeals through counsel the June 8, 2010, decision of the Board of Veterans' Appeals (Board) that determined that new and material evidence had not been presented to warrant reopening the previously denied claims of entitlement to service connection for a right knee disorder and for a left knee, left leg disorder. This appeal is timely and the Court has jurisdiction over the matters on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate where the issue is of "relative simplicity" and the "outcome is not reasonably debatable." See Frankel v. Derwinski, 1 Vet.App. 23, 25- 26 (1990). Because the Board erred in finding that no new and material evidence was offered to reopen the claims, the Court will reverse the June 2010 decision and remand the matters for further proceedings consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Army from June 1953 to June 1956. Record (R.) at 2382. He filed a claim for VA compensation benefits for leg trouble shortly after his discharge from military service. R. at 2390-91. The VA regional office (RO) denied his claim in July 1956, noting that there was no evidence of complaints or abnormalities during his military service or discharge examination. R. at 2324. In March 2000, the RO acknowledged that the appellant was attempting to reopen his claim. R. at 398-402; see R. at 403. In support of his claim, the appellant had submitted an April 2000 letter from Dr. Kenneth S. Glass, who opined that "the internal derangement of the knee is therefore related to the gentleman's service activities." R. at 404. The report further indicated that Dr. Glass reviewed a magnetic resonance image (MRI) that was positive for medial meniscal tear. Id. In June 2000, the RO denied the appellant's claim. R. at 388-95. The RO acknowledged that the appellant sustained an injury while in military service, but ultimately concluded that Dr. Glass' statement did "not provide a new factual basis for the grant of service connection." R. at 392. Since the July 1956 rating decision denying service connection for a left leg disorder and the June 2000 rating decision declining to reopen the right knee claim, the appellant has submitted additional statements from Dr. Glass (R. at 171, 194), medical reports including the results of a 2003 MRI (R. at 193), and statements from "comrades [he] served on active duty with in Korea, who witnessed the accident which [caused his] present disability." R. at 91; see R. at 92, 93, 94, 95. Of note, a March 2004 letter from Dr. Glass notes his review of the 2003 MRI, and opines that the appellant's right knee injury was "due to service of 1955." R. at 194. Also, in January 2005, Dr. Glass opined that "[i]t is my opinion that [the appellant's] right knee injury is a direct result from his military service." R. at 171. The Board issued the decision currently on appeal on June 8, 2010. R. at 3- 18. In its decision, the Board found that the appellant had not submitted new and material evidence sufficient to warrant reopening the claims for service connection for his current right knee disorder and left knee, left leg disorder. Id. Regarding the right knee disorder, the Board discussed the evidence that had been submitted since the June 2000 rating decision noting that, in June 2000, his claim had been denied because the evidence did not show that the appellant's "current right knee disability was related to an in[-]service injury." R. at 13. The Board found that new medical evidence did not "relate to that unestablished fact of a positive correlation between the [ v]eteran's current right knee disorder and his service." Id. The Board dismissed the recent statements from Dr. Glass, stating that "they ultimately only contain cumulative evidence." R. at 14. Regarding the left knee, left leg 2 disorder, the Board evaluated the evidence submitted since the July 1956 rating decision, and similarly concluded that, while new, evidence submitted in support of the claim was not "material" so as to warrant reopening. R. at 15-17. II. ANALYSIS In his brief, the appellant argues that the VA failed to provide proper notice of the evidence necessary to substantiate his claim; that the Board improperly weighed the evidence when considering whether to reopen the claims; and that the Board's decision denying reopening is contrary to recent caselaw. Appellant's Brief (Br.) at 6-15. The Secretary urges the Court to affirm the Board's decision, arguing that the appellant has not demonstrated prejudicial error in the adjudication of his claims. Secretary's Br. at 6-10. Pursuant to 38 U.S.C. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 U.S.C. § 5108. "New and material evidence" is defined as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). However, the Secretary is not required "to consider the patently incredible to be 3 credible." Id.; see also King v. Brown, 5 Vet.App. 19, 21 (1993) (noting that Board must not assume credibility of evidence "when the evidentiary assertion is inherently incredible or when the fact assertedis beyondthecompetenceof the person makingthe assertion")( citingEspiritu v.Derwinski, 2 Vet.App. 492 (1992)). In Shade, the Court held that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Shade, 24 Vet.App. at 121. The Board's determination of whether a claimant has submitted new and material evidence is generally reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 (2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc). "'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Here, the Board conceded that the appellant submitted evidence that is " new" insofar as the evidence was first considered after a previous disallowance. R. at 13-14, 15. Evidence added to the appellant's claims file since the previous disallowances of his claims include medical treatment records, a 2003 MRI, statements from friends who contended that they witnessed an in-service accident, and medical opinion statements from Dr. Glass. R. at 91-101, 171, 193, 194. The Board concluded that all the newly submitted evidence was cumulative of medical evidence previously considered and that the evidence did not relate to an unestablished fact necessary to substantiate the claim. R. at 13-16. In Shade, the Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence," but was intended to provide" guidance forVA adjudicatorsin determining whethersubmitted evidencemeets the new and material requirements." Id. at 117. The Board's analysis in this matter regarding new and material evidence does not comport with the Court's analysis in Shade, particularlywith respect to the medical opinions of Dr. Glass. R. at 14. As explained above, the Board is precluded from considering the probative weight and credibility of newly submitted evidence in a claim to reopen based on new and material evidence. Justus, 3 Vet.App. at 513. The Board must presume that the evidence is credible. Id. "Once the 4 evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the Boardhavingacceptedprovisionallyforreopeningpurposesthecredibilityofthenew, then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old." Id. In its June 2010 decision, the Board framed its determinations as those of materiality of the new evidence, but ultimately those determinations centered around the credibility and probative weight of the evidence. See R. at 10-17. The evidence of pertinent medical examinations, medical opinions, treatment records that postdate the last final denial, and the supportive lay testimony all bear directly and substantially on his claim for service connection for his right and left knee conditions. This is particularly true of the medical opinion of Dr. Glass, which expressly stated that it was based on a 2003 MRI, i.e., medical evidence that postdated the previous disallowance of the claims. See R. at 194. The Board erred in not reopening the appellant's claim when the evidence of record included a newlysubmitted medical opinion that relates to the unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). This evidence bears directly and substantially on the appellant's claim for service connection for his right and left knee claims being related to his military service. Id. It was error for the Board to weigh the evidence before reopening the appellant's claim and, as stated above, the Court is required to reverse " a finding of material fact . . . if the finding is clearly erroneous." 38 U.S.C. § 7261(a)(4). Accordingly, the Court will reverse the June 2010 decision to the extent that it found that no newandmaterial evidence hadbeenreceivedto reopentheappellant's claimsandremandthematters to the Board for readjudication. 38 U.S.C. § 7261(a)(4); Justus, 3 Vet. App. at 513. Further, once the claims are remanded, the Board must return the matter to the RO for adjudication to afford the appellant one review on appeal and to complete any development that the reopened claim requires, including a medical examination and opinion. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) ("When the Board obtains evidence that was not considered by the [regional office] and does not obtain the appellant's waiver, however, an appellant has no means to obtain 'one review on appeal to the Secretary,' because the Board is the only appellate tribunal under the Secretary."); see 38 U.S.C. § 7104(a) ("All questions in a matter which . . . is 5 subject to decision by the Secretary shall be the subject to one review on appeal to the Secretary."); Shade, supra. In light of the need to remand the claims, the appellant's remaining assertions of error are moot. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one theory moots the remaining theories advanced on appeal). III. CONCLUSION Upon consideration of the foregoing, the parties' briefs, and the record on appeal, the Board's June 8, 2010, decision that found that no new and material evidence had been submitted to warrant reopening the claims for service connection for a right knee and left knee, left leg disorder is REVERSED and the matters are REMANDED for readjudication consistent with this decision. DATED: October 26, 2011 Copies to: Eric A. Gang, Esq. VA General Counsel (027) 6

Single Judge Application, Mitchell v. Shinseki, ____ Vet.App. ____, No. 09-2169 (Aug. 23, 2011); Pain Itself Does Not Contitute A Functional Loss

Excerpt from decision below: "After briefs were submitted in this case, the Court addressed the issue raised by the appellant in Mitchell v. Shinseki, ____ Vet.App. ____, No. 09-2169 (Aug. 23, 2011). In Mitchell, the Court held that the principle that "painful motion is limited motion" taken from Hicks and Lichtenfels applies only to evaluations under DC 5003 for degenerative arthritis, which permits a disability rating of 10% for painful motion that does not limit range of motion to a compensable degree under another, relevant DC. ____ Vet.App. at ____, slip op. at 27. Under DCs that rate disabilities based upon range of motion (such as the DC at issue here), the Court made clear that while "pain may cause functional loss, pain itself does not constitute a functional loss," and is alone not grounds for entitlement to a higher disability rating. Id. at ____, slip op. at 14. Based upon Mitchell, the appellant's argument is, therefore, without merit. ================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4419 DANIEL L. MOY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Daniel L. Moy, appeals through counsel an August 4, 2009, Board of Veterans' Appeals (Board) decision in which the Board denied his claims for entitlement to a disability rating greater than 10% for post-traumatic degenerative joint disease of the right knee, status post arthrotomy, for the period from July 3, 2003, until December 22, 2005, and entitlement to a disability rating greater than 20% for a right knee disorder for the period after December 23, 2005. Record of Proceedings (R.) at 3-18. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet. App.23, 25-26 (1990). For the following reasons, the Court will affirm, in part, and vacate, in part, the Board's decision and remand the vacated matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Army from June 1968 until June 1970. R. at 1097. A meniscectomywas performed on the appellant's right knee during his service. R. at 515. In June 2003, the appellant filed a claim for benefits for, among other conditions, a right knee disorder. R. at 1082-91. He indicated that he injured his knee in June 1970. R. at 1087. In a September 2003 VA medical examination, the appellant was diagnosed with degenerative joint disease of his right knee with no instability. R. at 1032-36. The examiner opined that the appellant's right knee disorder is related to his service. R. at 1035. In a November 2003 rating decision, the VA regional office (RO) granted the appellant entitlement to service connection for post-traumatic degenerative joint disease of his right knee and assigned a disability rating of 10% with an effective date of July 3, 2003. R. at 1027-31. InDecember2005,theappellant's privateorthopedist,Dr.PeterF.Holmes, submittedaletter stating that the appellant had developed "severetricompartmental degenerative joint disease . . . with instability" in his knees. R. at 935. Dr. Holmes stated that the appellant was unable to walk for long distances or sit for prolonged periods, and required pain and anti- inflammatory medication to keep him "somewhat comfortable." Id. Based, in part, on the findings of a May 2006 VA medical examination (R. at 920-28), in June 2006, the RO increased the appellant's disability rating for his right knee disorder to 20% with an effective date of December 23, 2005, the date of Dr. Holmes's letter. R. at 916-19. The appellant was provided a VA medical examination in December 2006. R. at 859-63. In a January 2007 hearing before the Board, the appellant stated that he has constant pain in his knee that requires him to use a cane to walk. R. at 868. He stated that his right knee was not severely unstable, but said that he could not stand on his right leg and keep his balance. R. at 875. In April 2007, the Board remanded the appellant's case for the RO to obtain additional medical records and provide the appellant an additional VA medical examination. R. at 848-54. The appellant was provided with that examination in March 2009, and the examiner diagnosed him with right knee osteoarthritis and degenerative joint disease. R. at 76-79. In April 2009, the RO continued a 10% disability rating for the appellant's right knee disorder from July 2003 until December 2005, and a 20% disability rating thereafter. R. at 72-74. The Board, in its August 4, 2009, decision here on appeal, denied the appellant entitlement to a disability rating in excess of 10% for a right knee disorder for the period from July 3, 2003, until December 22, 2005, and entitlement to a disability rating in excess of 20% for the period after December 23, 2005. The Board found that prior to December 2005 the evidence did not demonstrate that the appellant's disorder caused limitation of flexion and extension of his leg such that a higher 2 disability rating is warranted. R. at 5-6, 11. The Board considered whether functional loss in the use of the appellant's leg due to pain warranted a higher disability rating, but found that it did not. R. at 12. The Board made similar findings for the period after December 2005. R. at 6, 13-14. Also, the Board determined for both periods that the evidence did not demonstrate that the appellant suffered from instabilityin his knee such that an increased disabilityrating is warranted. R. at 12-13, 15-16. The appellant raises three arguments on appeal. First, he asserts that evidence of pain throughout the range of motion of his knee is indicative that a higher disability rating is warranted, and that the Court should order the Board award him separate, higher disability ratings for pain throughout his range of motion and for evidence of instability in his knee. Appellant's Brief (Br.) at 10-13. Next, the appellant contends that remand is warranted because the Board failed to consider a possible additional disability rating based on his 1970 meniscectomy. Id. at 14-15. Finally, the appellant argues that the Court should order the Board to award him a 10% disability rating based on record evidence indicating that the extension of his knee is limited to 10 degrees. Id. at 15-16. TheSecretaryconcedesthat remand is warrantedfortheBoardto address whetherpainlimits the appellant's range of motion in his right knee and determine whether its findings indicate that a higher disabilityrating is warranted for the period after December 23, 2005. Secretary's Br. at 7. The Secretary also concedes that remand is warranted for the Board to consider whether a separate disability rating is appropriate based on his meniscectomy and whether the appellant is entitled to an additional disability rating for evidence of limitation of extension of his right leg for the period after December 23, 2005. Id. The Secretary, however, argues that the Court should not reverse the Board's decision and should not award the appellant the disability ratings he seeks. Id. at 8-9. II. ANALYSIS A Board determination of the appropriate degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). A finding of fact is clearly erroneous when the Court, after reviewingthe entire evidence, "is left with thedefiniteandfirmconvictionthat a mistake 3 has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 ( 1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). However, when deciding a matter, the Board must include in its decision a written statement of thereasons orbasesforits findings and conclusions, adequate to enablean appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet. App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of anymaterial evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57. A. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260 (2008) According to VA regulations, a veteran with full range of motion in his knee is able to flex his knee to 140 degrees and extend his knee to 0 degrees. 38 C.F.R. § 4. 71a, Plate II (2008). The Board applied 38 C.F.R. § 4.71a, DC 5260 in conjunction with DC 5261 in determining the appropriate disability rating for the period both before and after December 2005. Pursuant to DC 5260, a 10% disability rating is warranted when flexion of the leg is limited by 45 degrees, a 20% disability rating is warranted when flexion is limited by 30 degrees, and a 30% disability rating is warranted when flexion is limited by 15 degrees. Pursuant to DC 5261, a 10% disability rating is warranted when extension of the leg is limited to 10 degrees, a 20% disability rating is warranted when extension is limited to 15 degrees, and a 30% disability rating is warranted when extension is limited to 20 degrees. TheBoardfoundthat,fortheperiodpriorto December2005, theappellant'srightflexion was not limited by 30 degrees and his extension was not limited to 15 degrees, and thus denied him a disability rating greater than 10%. R. at 11. The Board also found that, because flexion was not limited by45 degrees, a separate compensable disability rating is not warranted under DC 5260. Id. For the period after December 2005, the Board found that the appellant's flexion was not limited by 15 degrees, and his extension was not limited to 20 degrees, and thus denied him a disability rating higher than 20%. R. at 14. The Board also found that, because the appellant's flexion was not limited by 45 degrees, a separate compensable rating is not warranted under DC 5260. Id. 4 In addition to applying the rating formula found in DCs 5260 and 5261, the Board also applied 38 C.F.R. §§ 4.40 and 4.45, as well as this Court's holding in DeLuca v. Brown, 8 Vet.App. 202 (1995). In DeLuca, the Court held that §§ 4.40 and 4.45 require VA to consider the disabling effect of painful motion, fatigability, and weakness when rating joints and rejected the Secretary's argument that "any regulation that specifies a rating for limitation of motion ipso facto includes a rating for pain." 8 Vet.App. at 205-06. For the period prior to December 2005, the Board found that "even though the [appellant] complains of pain, consideration of 38 C.F.R. §§ 4.40, 4.45 does not lead the Board to conclude that functional losses he experiences in his right knee equate to the criteria fora 20 percent ratingunder either [DC] 5260 or [DC] 5261, or separate compensable ratings under these same [DCs]." R. at 11-12. Likewise, for the period after December 2005, the Board found that "even taking into account the [appellant's] complaints of pain . . . the record does not lead the Board to conclude that the functional losses he experiences in his right knee equate to the criteria for a 30 percent rating because extension is not limited to 20 degrees." R. at 14. The Board also found that functional loss due to pain did not indicate that separate disability ratings were warranted for this period. R. at 14. The appellant does not argue that the Board's findings under DCs 5260 and 5261 and DeLuca and its related regulations are erroneous. Instead, he argues that the Board did not apply the correct legal standard. He bases his argument on the Court's precedent in Hicks v. Brown, 8 Vet.App. 417, 420 (1995) in which the Court stated that painful motion of a major joint due to degenerative arthritis is "limited motion even though a range of motion may be possible beyond the point when pain sets in." Appellant's Br. at 12 (also citing Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991)). The appellant cites evidence in the record indicating that the appellant experienced pain during range of motion testing throughout his range of motion. Id. (citing R. at 926). The appellant concludes, therefore, that the Court "should [pursuant to DC 5260] reverse the Board's decision and remand with an instruction to award a 30-percent disability rating to [the appellant] for knee flexion limited 5 by pain."1 Id. at 12-13. The Secretary argues that remand is warranted for the Board to consider the evidence of painful motion cited by the appellant. Secretary's Br. at 11-14. After briefs were submitted in this case, the Court addressed the issue raised by the appellant in Mitchell v. Shinseki, ____ Vet.App. ____, No. 09-2169 (Aug. 23, 2011). In Mitchell, the Court held that the principle that "painful motion is limited motion" taken from Hicks and Lichtenfels applies only to evaluations under DC 5003 for degenerative arthritis, which permits a disability rating of 10% for painful motion that does not limit range of motion to a compensable degree under another, relevant DC. ____ Vet.App. at ____, slip op. at 27. Under DCs that rate disabilities based upon range of motion (such as the DC at issue here), the Court made clear that while "pain may cause functional loss, pain itself does not constitute a functional loss," and is alone not grounds for entitlement to a higher disability rating. Id. at ____, slip op. at 14. Based upon Mitchell, the appellant's argument is, therefore, without merit. The Secretary, acting without the benefit of Mitchell, concedes that remand is warranted for the Board to discuss May 2006 and March 2009 VA medical examination reports, which included complaints of pain during range of motion, McMurray's, and varus and valgus stress testing. Secretary's Br. at 11 (citing R. at 76-79, 920-28). The appellant, however, does not appear to accept the Secretary's concession. He states that the Secretary's argument that remand is warranted for the Board to discuss certain evidence of record is "incorrect" because the Board "expressly considered whether the [appellant] was entitled to a rating for limitations of flexion and extension based on pain." ReplyBr. at 2. Further, the appellant states that "[e]ven though the Board did not specifically consider the complaints of pain from the May 2006 and March 2009 VA examinations, the Board's error was not a failure of fact finding but an incorrect application of the law." Reply Br. at 2. Because the Court finds no error in the Board's application of the law, and the appellant does nothing to demonstrate error in the Board's consideration of how his pain affects his functional loss under DeLuca and its related regulations, the Court will affirm the Board's application of DC 5260. Hilkert In his reply brief, the appellant clarifies the award he seeks. He asks the Court to order that the Board award him a 30% disability rating under DC 5260 and a 10% disability rating under DC 5261. 6 1 v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on appeal). B. Separate Disability Ratings For 38 C.F.R. § 4.71a, DC 5257 and DC 5260 The Appellant argues that separate disabilityratings should be awarded under DCs 5257 and 5260. Appellant's Br. at 13. Pursuant to 38 C.F.R. § 4.71a, DC 5257, recurrent subluxation or lateral instability of the knee warrants a 30% disability rating when it is severe, a 20% disability rating when it is moderate, and a 10% disability rating when it is slight. The Board denied the appellant entitlement to a separate disabilityrating under either DC 5257 or DC 5260 for both before and after December 2005. R. at 12-16. The appellant argues that the Court should reverse the Board's decision and order the Board to assign him a separate 20% disability rating under DC 5257 as well as a 30% disability rating under DC 5260. Appellant's Br. at 13. 1. Period Prior to December 2005 For this period, the Board found that "because there is no evidence in the record that suggests 'slight' subluxation or instability in the right knee, a separate compensable rating for right knee instability is not warranted under [DC 5257]. . . . This is true throughout the period." R. at 13. The Board also found that because the appellant's flexion is not limited to 45 degrees, a separate compensable rating is not warranted under DC 5260. R. at 12. The appellant does not offer any citations to the record or any other challenge to the Board's finding that the evidence does not indicate that a compensable disability rating is warranted under DC 5257 prior to December 2005. The Court has already upheld the Board's findings concerning DC 5260, and the appellant makes no further arguments about the Board's findings. Therefore, the Court finds no error. See Hilkert, 12 Vet.App. at 151; see also Locklear v. Nicholson, 20 Vet.App. 410, 416 ( 2006) (holding that the court will not entertain underdeveloped arguments). 2. Period After December 2005 In June 2006, the RO awarded the appellant a 20% disability rating under DC 5257 "due to [his] instability of the right knee." R. at 917. The appellant makes it clear that he has no desire to challenge that decision. R. at 1, 4. Instead, he asserts that he deserves separate ratings because "DC 5260 affects range of motion while the disability rated under DC 5257 affects stability of the knee." Appellant's Br. at 13. 7 Under DC 5260, the Board found that the appellant's flexion is not limited to 45 degrees, and thus "even taking into account [the appellant's] complaints of pain, a separate compensable rating is not warranted under [DC 5260]." R. at 14. The Court upheld the Board's application of DC 5260 in section A, supra. The appellant makes no arguments that the Board's findings concerning DC 5257 are erroneous, nor does he make any further arguments concerning DC 5260. Therefore, the Court finds that the Board's decision not to award separate disability ratings under these DCs is not error. See Hilkert and Locklear, both supra. C. 38 C.F.R. § 4.71a, DC 5259 The appellant argues, and the Secretary concedes, that remand is warranted because the Board failed to consider 38 C.F.R. § 4.71a, DC 5259. Appellant's Br. at 14-15; Secretary's Br. at 17- 18. The Board is required to consider all evidence of record and to consider and discuss all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). DC 5259 allows a 10% disability rating to be awarded for removal of "cartilage, semilunar." As the parties note, the external semilunar cartilage of the knee is also known as the "meniscus lateralis" while internal semilunar cartilage of the knee is known as "meniscus medialis." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 299 (32d ed. 2012). The appellant had a menisectomy performed on his right knee during service. R. at 515. Therefore, the Court agrees with the parties that this case should be remanded for the Board to consider DC 5259 and provide an adequate statement of reasons or bases for its decision. D. 38 C.F.R. § 4.71a, DC 5261 As the appellant notes, pursuant to 38 C.F.R. § 4.71a, DC 5261, a 10% disability rating is warranted if extension of the appellant's leg is limited to 10 degrees. The appellant argues that evidence of the record establishes that his extension is limited to "at least 10 degrees," and therefore the Court should reverse the Board's decision and order it to assign a 10% disability rating under this DC. Appellant's Br. at 15-16. The Secretary argues that remand is warranted for the Board to consider evidence potentially in favor of the appellant's claim. Secretary's Br. at 18-22. All of the records cited by the appellant in favor of his claim date to the period after December 2005. The appellant cites to nothing in the record and makes no specific arguments 8 concerning the Board's application of DC 5261 in the period prior to December 2005. The Court, therefore, will affirm the Board's decision for that period. See Hilkert and Locklear, both supra. The appellant supports his argument by citing to two records from Dr. Holmes. In the first, dated November 2006, Dr. Holmes indicates that the appellant "[l]ags" 20 degrees of extension. R. at 92. In the second, dated November 2007, Dr. Holmes indicates that the appellant "lags" 10 degrees of extension. R. at 42. The Board cited both documents in its decision and stated that the Board notes that a private medical record dated in November 2006 noted that the [appellant] "lags" 20 degrees of extension and a November 2007 private medical record noted that he "lags" 10 degrees of extension. However, the earlier May 2006 and December 2006 VA examiners as well as the later March 2009 VA examiner all opined that extension was 0 degree[s]. The Board finds that these VA examiners['] opinions are more credible than the private opinions because they were given after a review of the record on appeal and an examination of the claimant whose purpose was ascertaining the current severity of his right knee disorder. . . . Therefore, since the most credible evidence of record[] shows that he had knee extension to 0 degrees during this appeal period, the Board finds that even taking into account the [appellant's] complaints of pain as per 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra, the record does not lead the Board to conclude that the functional losses he experiences in his right knee equate to the criteria for a 30 percent rating because extension is not limited to 20 degrees. . . . Morever, because extension is not seen limited to 10 degrees, even taking into account his complaints of pain, a separate compensable rating is also not warranted under [DC] 5261 throughout the period from December 23, 2005. R. at 14-15. The appellant makes no argument that the Board's statement ofreasons orbases for assigning reduced probative weight to the documents in support of his claim is inadequate. Instead, he asserts that the May and December 2006 VA examiners, while finding no range-of- motion limitations on extension, noted that the appellant experienced pain on range of motion. Appellant's Br. at 16. He also contends that the March 2009 VA examiner "did not report the point within the available range of knee extension [the appellant] first experienced pain." Id. The appellant cites to no authority and makes no argument why these observations are important. He neither renews the argument he made under DC 5260, nor does he dispute the Board's findings concerning functional loss. Therefore, the Court can discern no argument beyond the appellant's bare assertion that the record indicates that his knee extension is limited to 10 degrees. See Coker v. Nicholson, 19 Vet. App. 439, 442 (2006) ("The 9 Court requires that an appellant plead with some particularitythe allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per curiam order); Hilkert and Locklear, both supra. The Secretary, however, rescues the appellant from his inadequate argument. The Secretary asserts that the Board's conclusion that the December 2006 VA examiner stated that the appellant's extension was to 0 degrees is erroneous. Secretary's Br. at 19. The Secretary appears to be correct. The examiner recorded the appellant's range of motion as "from +10 degrees with further flexion to 115 degrees." R. at 860. Therefore, the Court finds that the Board's misreading of the December 2006 VA examination report renders its statement of reasons or bases inadequate, and remand is warranted. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, Gilbert, all supra. On remand, the Board should determine the meaningof the examiner's findings and provide a statement of reasons or bases indicating how the examiner's findings impact its application of DC 5261. Onremand,theappellantis freeto submit additionalevidenceandargumentontheremanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust consideradditional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretaryto providefor"expeditious treatment"of claims remanded bythe Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's August 4, 2009, decision is AFFIRMED, IN PART, and VACATED, IN PART, and the vacated matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: October 28, 2011 10 Copies to: Amanda Dittmar, Esq. VA General Counsel (027) 11