10-07 987
10-07 987
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served on active duty Nov 1988–Nov 2008 and appealed a VA RO decision regarding a service-connected left calf strain.
- Initial development included service treatment records and VA C&P examinations (Feb 2009, Oct 2013, May 2016).
- Veteran had chronic left calf symptoms (pain, stiffness, soreness, inability to run) since a jogging injury; intermittent PT and restrictions reported.
- VA assigned a 10% rating effective Oct 7, 2013; earlier periods were noncompensable.
- Board found evidence showed at least moderate symptoms for the entire appeal period and extended the 10% rating back to Dec 1, 2008 (prior to Oct 7, 2013).
- The record was inadequate to decide whether a rating above 10% is warranted; the Board remanded for a focused VA exam and addendum addressing severity, flare-ups, functional impact, and ROM testing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to a compensable rating (≥10%) for left calf strain for period prior to Oct 7, 2013 | Veteran argued symptoms (pain, stiffness, inability to run) merited a compensable rating before Oct 7, 2013 | VA previously assigned noncompensable rating for earlier period but later assigned 10% from Oct 7, 2013 | Held: evidence shows at least moderate symptoms for the entire period on appeal; 10% rating warranted prior to Oct 7, 2013 |
| Whether Veteran is entitled to rating in excess of 10% from Oct 7, 2013 onward | Veteran contends his condition may warrant >10% | VA examinations (Oct 2013, May 2016) were inadequate to assess severity and functional impact | Held: Issue remanded for new, adequate examination and opinion to determine whether >10% rating is warranted |
Key Cases Cited
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (entire medical history must be considered when evaluating disability)
- Francisco v. Brown, 7 Vet. App. 55 (1994) (current level of disability is primary when increase is claimed)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings appropriate when distinct time periods show different disability levels)
- Esteban v. Brown, 6 Vet. App. 259 (1994) (separate evaluations allowed for distinct, non-overlapping symptomatology)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure examinations/opinions it obtains are adequate)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence after remand)