11-11 968
11-11 968
Board of Vet. App.Oct 31, 2017Background
- Veteran served 1976–1982 and appealed VA ratings for bilateral elbow calcium deposits and left carpal tunnel syndrome (CTS); lengthy procedural history including Board decisions, a joint remand by the Court of Appeals for Veterans Claims, and multiple VA examinations.
- Prior ratings: single 10% for bilateral elbows (Dec 2009); 20% for left CTS (Dec 2009). April 20, 2017 AOJ increased left CTS to 30%, granted separate 10% for each elbow, and awarded TDIU effective April 20, 2017.
- Veteran alleges entitlement to higher ratings for: bilateral elbow calcium deposits (pre- and as-of 4/20/2017) and left CTS (pre- and post-4/20/2017), and TDIU for the period before 4/20/2017.
- VA obtained multiple examinations (2009, 2015, 2017). Elbow exams showed pain and mild limited ROM on 2017 exam but not to the degree required for higher schedular ratings; flare-up opinions were equivocal.
- Left CTS exams showed moderate, incomplete median nerve paralysis prior to April 20, 2017; April 2017 exam showed moderate, incomplete involvement of median, radial, and ulnar nerves, supporting 30% from that date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Higher than single 10% for bilateral elbow calcium deposits prior to 4/20/2017 | Elbow pain and flare-ups cause greater functional loss and warrant >10% | Exam findings and ROM measurements do not meet criteria for 20% or higher | Denied; 10% for each elbow for entire period granted |
| Higher than 10% for right elbow as of 4/20/2017 | 2017 exam shows increased pain and ROM loss warranting >10% | ROM and functional loss still below next schedular thresholds | Denied; 10% assigned |
| Higher than 10% for left elbow as of 4/20/2017 | Same as right elbow—worsening symptoms justify higher rating | Objective ROM/functional loss insufficient for 20%+ | Denied; 10% assigned |
| Higher than 20% (pre-4/20/2017) and higher than 30% (from 4/20/2017) for left CTS | CTS symptoms, pain, and functional loss warrant higher peripheral nerve ratings | Prior to 4/20/2017 only moderate incomplete median nerve paralysis; 4/20/2017 shows moderate multi-nerve involvement but not severe/complete paralysis | Denied; 20% pre-4/20/2017 and 30% from 4/20/2017 are correct |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (clarifies when issues are properly on appeal)
- AB v. Brown, 6 Vet. App. 35 (TDIU coverage and appeals scope)
- DeLuca v. Brown, 8 Vet. App. 202 (pain and functional loss analysis)
- Correia v. McDonald, 28 Vet. App. 158 (range-of-motion testing requirements under § 4.59)
- Sharp v. Shulkin, 29 Vet. App. 26 (adequacy of flare-up opinions)
- Thun v. Peake, 22 Vet. App. 111 (extraschedular threshold)
- Johnson v. McDonald, 762 F.3d 1362 (extraschedular evaluation and combined effects)
- Scott v. McDonald, 789 F.3d 1375 (remand not required if no benefit to veteran)
- Bowling v. Principi, 15 Vet. App. 1 (referral requirement for extraschedular TDIU consideration)
- Kutscherousky v. West, 12 Vet. App. 369 (veteran's right to submit additional evidence after remand)