10-12 951
10-12 951
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served on active duty from June 1986 to August 1990 and later had claims for bilateral knee conditions.
- April 2006 RO decision granted service connection for degenerative joint disease (DJD) of both knees with separate 10% evaluations under hyphenated DCs 5257-5003.
- Prior to the April 2006 grant, the Veteran was service connected for bilateral retropatellar pain syndrome/quadriceps tendonitis rated under DC 5260 (limitation of flexion).
- In May 2008 the RO severed service connection for bilateral knee DJD effective May 1, 2008, concluding the April 2006 award contained clear and unmistakable error (CUE) due to alleged unlawful pyramiding.
- The Board previously denied restoration in January 2015; the Court vacated that decision by joint motion in June 2016 and remanded. The current Board found the April 2006 grant did not contain CUE and restored the separate 10% evaluations effective August 1, 2008.
- The Board relied on record evidence (treatment notes, MRI, subjective reports) indicating some knee instability/subluxation, which supports rating under DC 5257 rather than impermissible pyramiding under DC 5003.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether April 2006 award of separate 10% ratings for right knee DJD contained CUE (pyramiding) and whether severance was proper | April 2006 award was valid; severance was improper (restore benefits) | RO/VA argued the April 2006 grant was CUE because DJD rating duplicated motion limitation ratings (pyramiding) | No CUE found; severance improper; service connection for right knee restored effective Aug 1, 2008 |
| Whether April 2006 award of separate 10% ratings for left knee DJD contained CUE (pyramiding) and whether severance was proper | Same as above for left knee | Same as above for left knee | No CUE found; severance improper; service connection for left knee restored effective Aug 1, 2008 |
Key Cases Cited
- Stallworth v. Nicholson, 20 Vet. App. 482 (explains severance standard and that restoration requires showing no CUE)
- Daniels v. Gober, 10 Vet. App. 474 (CUE review principles; permissible review of evidence beyond original decision in severance context)
- Fugo v. Brown, 6 Vet. App. 40 (defines CUE standard: error compelling to reasonable minds that outcome would be manifestly different)
- Allen v. Nicholson, 21 Vet. App. 54 (clarifies scope of evidence considered for severance actions)
- Graves v. Brown, 6 Vet. App. 166 (severance/revision legal principles)