11-31 746
11-31 746
Board of Vet. App.Aug 31, 2016Background
- Veteran served active duty Apr 1974–Apr 1978; appealed RO rating decisions addressing left ankle disability, claimed right knee secondary, and TDIU.
- Service-connected left ankle: segmental distal 1/3 fibular fracture and medial malleolus fracture, healed, with DJD; initially rated 10% (seeking higher).
- Medical evidence: VA exams (Jun 2010, Feb 2014) and private records documenting ankle pain, altered/antalgic gait, progressive DJD, cane use (by 2014), and decreased ROM on repetitive testing; private physicians opined ankle-induced altered gait caused right knee degeneration.
- Right knee diagnosed with meniscal tear and DJD; claimant asserted it is secondary to altered gait from left ankle injury.
- Veteran has multiple service-connected conditions including PTSD (70%), lumbar spine (10→20%), left ankle (10→20% as decided), and now right knee; he receives Social Security Disability and asserts inability to work due to service-connected conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether initial left-ankle rating >10% prior to Feb 19, 2014 | Ankle pain, swelling, limp and functional loss justify >10% | Objective VA exam showed normal ROM and no compensable repetitive-use loss pre-Feb 19, 2014 | Denied — pre-2/19/2014 rating remains 10% |
| Whether left-ankle rating should be increased from Feb 19, 2014 onward | Feb 2014 exam shows marked ROM limitation and post-repetitive-use loss, cane use, functional impairment | No higher code more favorable; but schedular criteria control | Granted increase to 20% from 2/19/2014 (max under DC 5271) |
| Whether right knee is service-connected as secondary to left ankle | Treating physicians: altered gait from left ankle caused accelerated right-knee degeneration | VA examiner: knee degeneration likely age/occupation/weight-related; less likely due to ankle | Granted — resolved in claimant’s favor on equipoise; service connection for right knee as secondary to left ankle |
| Whether Veteran is entitled to TDIU | Veteran unable to secure/follow substantially gainful employment due to service-connected physical and psychiatric conditions | VA considered work history, exams, SSA decision; threshold for TDIU met and evidence shows unemployability | Granted — Veteran meets schedular criteria and evidence supports inability to sustain gainful employment |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (claims for increased rating include TDIU where veteran asserts unemployability)
- Stegall v. West, 11 Vet. App. 268 (remand compliance standard)
- Fenderson v. West, 12 Vet. App. 119 (use contemporaneous evidence to decide initial rating error; staged ratings permitted)
- Mitchell v. Shinseki, 25 Vet. App. 32 (pain-related functional loss must be considered under 38 C.F.R. §§ 4.40, 4.45)
- Thun v. Peake, 22 Vet. App. 111 (extraschedular referral two-step inquiry)
- Hartman v. Nicholson, 483 F.3d 1311 (VCAA notice not required for downstream increased-rating when service connection already granted)
- Gilbert v. Derwinski, 1 Vet. App. 49 (preponderance standard; benefit of the doubt rule explained)