10-10 523
10-10 523
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served on active duty Sep–Dec 1993 and sought VA benefits for a right ankle injury; claim file shows VA received claim on January 19, 2009 (representative later asserted earlier submission but no receipt evidence).
- Service connection for residuals of right ankle sprain with degenerative changes and mild laxity was awarded effective January 19, 2009 (not earlier).
- Veteran has been assigned a 10% rating under Diagnostic Code 5271 for moderate limitation of ankle motion.
- Multiple VA exams (2010, 2011, 2012, 2016) show mostly preserved ankle ROM (dorsiflexion 20°, plantar flexion up to 45°), intermittent pain, mild laxity on some testing, and variable strength findings; examinations did not show marked limitation of motion required for a 20% rating.
- Veteran reported functional effects (flare-ups, difficulty with prolonged standing/walking, resigned from last job), but evidence did not establish unemployability solely from the single 10% service-connected ankle disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effective date earlier than Apr 17, 2009 for service connection | Representative: original claim submitted Jan 19, 2009 (or documents signed Dec 17, 2008) so earlier effective date warranted | VA: no record of receipt before Jan 19, 2009; receipt date controls | Allowed effective date of Jan 19, 2009, but not earlier |
| Higher rating (>10%) for right ankle residuals | Veteran: pain, flare-ups, instability and work limitations warrant >10% (20% for marked limitation) | VA: objective ROM and exam findings show no marked limitation; evidence supports only moderate limitation | Denied — rating remains 10% |
| TDIU based solely on service-connected ankle | Veteran: unable to perform past work and resigned due to ankle problems; seeks unemployability | VA: single 10% rating below schedular TDIU thresholds; functional capacity and education/experience permit sedentary work; no exceptional circumstances for extraschedular TDIU | Denied — no TDIU or extraschedular referral |
Key Cases Cited
- Schafrath v. Derwinski, 1 Vet. App. 589 (Vet. App. 1991) (use of diagnostic history in evaluating musculoskeletal claims)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App. 1990) (benefit of the doubt rule in VA claims)
- Francisco v. Brown, 7 Vet. App. 55 (Vet. App. 1994) (focus on present level of disability in increase claims)
- Fenderson v. West, 12 Vet. App. 119 (Vet. App. 1999) (staged ratings on initial assignments)
- Hart v. Mansfield, 21 Vet. App. 505 (Vet. App. 2007) (staged ratings when distinct time periods show different severity)
- Johnson v. Brown, 9 Vet. App. 7 (Vet. App. 1996) (consider functional loss from pain when assessing ROM-based codes)
- DeLuca v. Brown, 8 Vet. App. 202 (Vet. App. 1995) (need to consider flare-ups and repeated use under musculoskeletal criteria)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App. 2008) (extraschedular consideration standards)
- Van Hoose v. Brown, 4 Vet. App. 361 (Vet. App. 1993) (requirements for showing unemployability beyond mere unemployment)