10-10 924
10-10 924
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served Oct 1986–Jul 1987 and has a service‑connected cross union (malunion) of the distal tibia and fibula, right lower extremity, currently rated 10%.
- Initial 30% rating (Aug 1987) reduced to 20% (Mar 1989) and to 10% effective June 1, 1991; appeal for increased rating filed May 2009.
- VA examinations and imaging show heterotopic ossification with bony bridging at distal tibiofibular syndesmosis, maintenance of ankle mortise, and ROM measurements of 0–10° dorsiflexion and 0–45° plantar flexion (May 2017 exam noted flare‑up and pain with ROM and weight bearing).
- Functional limitations documented: pain on use, swelling/edema, limited standing/ambulating, use of cane, and occupational limits for standing/ambulating tasks.
- Diagnostic Code (DC) 5262 governs rating: malunion with slight = 10%, moderate = 20%, marked = 30%; nonunion with loose motion requiring brace = 40%.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entitlement to an increased rating for right distal tibia/fibula cross union is warranted | Veteran: condition worsened; increased pain and functional limitation (standing, ambulation, running) | VA/RO: prior reductions appropriate; current evidence must be compared to DC 5262 criteria | Board granted an increased rating to 20% (moderate ankle disability) but denied higher ratings because criteria for marked disability, nonunion requiring brace, or ankylosis are not met |
Key Cases Cited
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (entire claims history must be considered when rating disabilities)
- Layno v. Brown, 6 Vet. App. 465 (1994) (limits on lay competence to diagnose or apply specific rating criteria)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (pain, weakened movement, and fatigability must be considered in functional loss)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings may be appropriate for changes over time)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (further discussion of staged ratings principles)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (requirements for adequate VA musculoskeletal examinations)