11-05 998
11-05 998
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served in USAF (1985–1989; 1989–1994) and appealed multiple VA RO decisions denying increased ratings and TDIU; matters were remanded several times and partially litigated in Court of Appeals for Veterans Claims.
- Service-connected conditions at issue: right knee patella chondromalacia (surgically treated Aug 20, 2003), bilateral hearing loss, tinnitus; combined ratings include PTSD and other musculoskeletal conditions.
- VA granted a 10% right-knee rating effective May 12, 2003 and increased to 30% effective December 28, 2009; temporary 100% rating was later awarded for Aug 20–Nov 1, 2003 (post-op convalescence).
- Audiology testing (2013, 2016) produced speech discrimination and pure-tone results yielding noncompensable ratings for hearing loss; tinnitus has been assigned the maximum schedular 10% (single rating only).
- The Board found VA examinations adequate, considered DeLuca factors and Correia requirements, addressed extraschedular (including Johnson/Bowling) arguments, and concluded the preponderance of evidence did not support higher ratings, extension of the convalescent 100% period, or TDIU.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Initial rating >10% for right knee prior to 12/28/2009 | Knee pain, functional loss, and exam findings support higher rating | Preponderance of record shows extension not limited to 15° or worse; limited ROM and functional loss do not meet higher criteria | Denied |
| 2. Rating >30% for right knee since 12/28/2009 | Post-2009 symptoms, pain and functional impairment warrant >30% | Exams show extension limited at worst to 20° (fits 30%); DeLuca factors insufficient to show greater ROM loss | Denied |
| 3. Initial compensable rating for bilateral hearing loss | Audiologic complaints and occupational impact justify compensable evaluation or extraschedular referral | Pure-tone and speech scores yield Level designations that combine to noncompensable; no exceptional pattern | Denied |
| 4. Rating >10% for tinnitus | Symptoms (constant high-pitched sounds) merit greater than schedular maximum | 10% is the maximum schedular evaluation for tinnitus; no basis for higher or extraschedular | Denied |
| 5. Extension of temporary total rating beyond 11/1/2003 (38 C.F.R. §4.30) | Postoperative symptoms and functional limitations required longer convalescence | Surgical records and follow-ups show wound healed, early return to work; no severe postop residuals or immobilization requiring extension | Denied |
| 6. TDIU entitlement | Combined effect of service-connected disabilities precludes substantially gainful employment | Veteran maintained full-time USPS employment throughout period; medical opinions do not conclude unemployability | Denied |
Key Cases Cited
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board need not discuss every piece of evidence)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule standard)
- Schafrath v. Derwinski, 1 Vet. App. 589 (1995) (consider entire history for ratings)
- Timberlake v. Gober, 14 Vet. App. 122 (2000) (focus on evidence necessary to adjudicate)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings permitted)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings principles)
- Layno v. Brown, 6 Vet. App. 465 (1994) (lay evidence considered)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (consider pain, weakness, fatigability for musculoskeletal ratings)
- Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain alone does not equate to ROM loss for certain codes)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (examinations must test pain on active/passive, weight-bearing/nonweight-bearing)
- Lendenmann v. Principi, 3 Vet. App. 345 (1992) (hearing loss ratings based on audiometric tables)
- Martinak v. Nicholson, 21 Vet. App. 447 (2007) (audiology exam must address functional effects for extraschedular consideration)
- Sabonis v. Brown, 6 Vet. App. 426 (1994) (tinnitus limited to single rating, schedular maximum)
- Felden v. West, 11 Vet. App. 427 (1998) (definition of convalescence and relevance to §4.30)
- Bowling v. Principi, 15 Vet. App. 1 (2001) (Board cannot award extraschedular TDIU in first instance without referral)
- Bagwell v. Brown, 9 Vet. App. 337 (1996) (Board must consider prejudice when declining extraschedular referral)
- Stegall v. West, 11 Vet. App. 268 (1998) (substantial compliance with remand directives)
- D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial compliance required for remand directives)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (weight given to VA examiner opinions when based on review and rationale)