05-24 518
05-24 518
Board of Vet. App.Apr 14, 2011Background
- Veteran seeks increased initial evaluations for right knee post operative residuals from Apr 1, 2007 to Apr 17, 2008 and since Nov 1, 2008.
- RO had previously awarded 10% then 20% for right knee and granted temporary total ratings during convalescence periods.
- Claim also includes service connection for a left knee disability, asserted as secondary to right knee conditions.
- Veteran seeks waiver of repayment of an overpayment ($6,404.17) of compensation benefits; issue of validity of debt raised.
- Board remanded related issues in 2009; on remand, the case was remanded again to address a Travel Board hearing request and the waiver issue.
- Remand directs issuance of a Statement of the Case for the waiver issue and scheduling a Travel Board hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to a higher initial rating for right knee residuals (Apr 1, 2007–Apr 17, 2008). | Veteran seeks rating in excess of 20%. | VA contends current rating reflected appropriate level for disability during that period. | Remanded for further development and adjudication. |
| Entitlement to a higher initial rating for right knee residuals since Nov 1, 2008. | Veteran seeks rating in excess of 20%. | VA contends rating is appropriate based on evidence since 2008. | Remanded for further development and adjudication. |
| Entitlement to service connection for a left knee disability, including as secondary to right knee conditions. | Left knee disability is connected to service or secondary to right knee condition. | VA previously denied; appropriate development needed. | Remanded for further development and adjudication. |
| Waiver of recovery of an overpayment of compensation benefits ($6,404.17); include validity of debt. | Waiver should be granted; debt validity contested. | RO denied waiver; SOC required if appeal perfected. | Remanded for issuance of a Statement of the Case. |
Key Cases Cited
- Manlincon v. West, 12 Vet. App. 238 (1999) (requires SOC when NOD filed but no SOC issued)
- Stegall v. West, 11 Vet. App. 268 (1998) (remand where RO fails to issue SOC)