BVA Case 20-3955: Back

The Board denied entitlement to (1)a disability rating in excess of 10%for left knee meniscectomy under Diagnostic Code 5257; (2)a rating in excess of 10%for limitation of left knee extension,(3)a compensable rating for limitation of left knee flexion;(4)a rating in excess of 10%for partial meniscectomy of the right knee under Diagnostic Code 5257;and (5)a compensable rating for partial meniscectomy of the right knee based on limitation of flexion under Diagnostic Code 5260.

Turning to the August 2010 decision,the appellant first argued that,if the Board found no CUE in the February 1995 decision, the RO committed the same error in 2010.

Instead,he argues,the Board should have considered whether a preponderance of the evidence in existence in August 2010 supported separate ratings.

Finally,the appellant asserts that,having found CUE in the August 2010 RO decision,the Board erred in concluding that he was not entitled to 10% disability ratings for the left and right knees under Diagnostic Code 5260 because,contrary to the Board's finding, the record confirms that he has arthritis in both knees.

He argues that,once the Board found CUE in the August 2010 RO decision,the Board was required to issue a new decision that 'must consider all relevant evidence and laws.

Moreover, the Board found,even if those opinions had been in effect in February 1995, the evidence of record at that time did not establish x-ray evidence of arthritis or limitation of motion in the left knee .

Finally,the Board found that the appellant's argument that 7 the RO should have assigned a higher rating under Diagnostic Code 5257 or should have assigned a separate compensable rating under a different diagnostic code was tantamount [to an argument] as to how the evidence was weighed, which is not CUE.

The en banc Court in Perciavalle recently addressed precisely this question and held that the Board erred in finding that the VA [General Counsel]opinion constituted a change in interpretation whe[re]th[at]opinion was rendered based on the premise that no antecedent interpretation existed.