12-00 098
12-00 098
Board of Vet. App.May 18, 2017Background
- Veteran served on active duty 1988–2008; service connection for chronic bilateral ankle strain and eczema was granted with original noncompensable ratings, later increased to 10% each during development.
- Veteran sought higher initial ratings for left and right ankle strain (>10%) and for eczema (>10%); appealed to the Board after RO decisions and submitted testimony at a July 2012 hearing.
- VA obtained service records, VA treatment records, and VA examinations (Jan 2009, addendum July 2009, and an adequate Aug 2014 exam). Veteran was invited to provide private treatment records but did not.
- Aug 2014 exam showed moderate ankle ROM limitations (dorsiflexion and plantarflexion measurements), pain on palpation, occasional brace use, and flare-ups; examiner could not quantify flare-up ROM without observation.
- Board found the evidence establishes only moderate limitation of motion for both ankles (10% each) and denied higher ratings; eczema claim was remanded for a November–January VA dermatology exam to capture active disease.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Initial rating >10% for left ankle (DC 5271) | Veteran: ankle pain, swelling, flare-ups, functional loss at work and with activities justify >10% | VA: objective ROM and exam findings show only moderate limitation; pain alone insufficient for higher rating | Denied — evidence shows no more than moderate limitation, 10% appropriate |
| Initial rating >10% for right ankle (DC 5271) | Veteran: similar functional complaints and flare-ups warrant higher rating | VA: ROM measurements and testing do not demonstrate marked limitation or ankylosis/malunion | Denied — remains no more than moderate limitation, 10% appropriate |
| Initial rating >10% for eczema | Veteran: seeks higher rating based on active-phase severity | VA: prior remand required exam during active phase (Nov–Jan); exam obtained in Aug was nonrepresentative | Remanded — obtain VA skin exam during active season and any outstanding VA records |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA notice/issue-exhaustion principles)
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir.) (downstream element notice obligations)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (joint ROM testing: active/passive and weight-bearing/non-weight-bearing)
- Vilfranc v. McDonald, 28 Vet. App. 357 (2017) (§4.59 not applicable where claimant already has at least minimum compensable rating)
- Stegall v. West, 11 Vet. App. 268 (1998) (remand compliance requirement)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (consideration of additional functional loss factors under §§4.40, 4.45)
- Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain alone does not equal functional loss without demonstrated limitation)
- Bryant v. Shinseki, 23 Vet. App. 488 (2010) (VLJ duties at hearing)
- Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir.) (Bryant hearing deficiency and issue exhaustion)
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir.) (Board must review whole record but need not discuss every item)