Weggenmann v. Brown — VA must provide a new examination when the record is too old to rate a worsened disability

The appellant sought an increased rating for bilateral hammertoes and also challenged the original 1948 rating decision as clearly and unmistakably erroneous. The Court rejected the CUE theory, explaining that the rating criteria for Diagnostic Code 5282 required hammertoe deformity of all toes on one foot for a compensable rating, and the evidence did not show deformity of the great toes. The Court therefore upheld the Board’s conclusion that the protected 10 percent rating could not be increased on the CUE theory presented.

The Court remanded on duty-to-assist grounds, however, because the veteran had alleged worsening and the most recent meaningful examination was decades old. The Board itself acknowledged that the hearing-room examination by a medical board member was inadequate for rating purposes, but incorrectly concluded that a formal orthopedic examination would be of little value. The Court held that VA must provide a thorough and contemporaneous examination when the record is too old to evaluate current severity. The decision also required the Board, on remand, to provide adequate reasons and bases and to consider any additional evidence submitted by the veteran.

When a veteran asserts that a service-connected disability has worsened and the available evidence is too old to evaluate current severity, VA’s duty to assist requires a thorough and contemporaneous examination by an appropriate medical professional.

In increased-rating cases, a stale record is not enough if the veteran says the condition has worsened. Advocates should press for a new VA examination rather than allow adjudicators to rely on decades-old evidence or a cursory hearing-room inspection.

Weggenmann is a frequently cited duty-to-assist case for obtaining a new examination in increased-rating appeals. It also illustrates the importance of separating a protected rating/CUE argument from the distinct question of whether current severity has been adequately developed and evaluated.

Relying on outdated evidence or an inadequate informal examination instead of obtaining a current, thorough VA examination.

A veteran last had a VA orthopedic exam 15 years ago and now reports marked worsening of a service-connected foot disability. VA denies an increase without scheduling a new exam, citing an old record and a brief clinic observation. Weggenmann supports a remand for a contemporaneous examination.

Use this case to argue for remand when the record is stale, the disability is alleged to have worsened, or the only recent assessment is not adequate for rating purposes. It is especially useful to challenge denials that rest on outdated exams rather than current medical evidence.

Russell v. Principi, Godwin v. Derwinski, Murphy v. Derwinski, Baker v. Derwinski, Green v. Derwinski, Proscelle v. Derwinski, Sammarco v. Derwinski, Gilbert v. Derwinski