12-24 301
12-24 301
| Board of Vet. App. | May 22, 2017Background
- Veteran served on active duty Nov 2001–Sep 2002 and appealed VA ratings after service connection for thoracolumbar spine (10% from Jul 26, 2007) and left knee degenerative joint disease (10% from Jul 26, 2007).
- Board hearing Aug 18, 2015; further development and exams occurred (Jan 2008, Jul 2012, Feb 2016) and a private August 2015 DBQ was submitted.
- May 2016 RO increased spine rating to 20% effective Aug 18, 2015, increased left knee to 20% effective Jul 26, 2012, and granted service connection for bilateral lumbar radiculopathy effective Aug 18, 2015; Veteran appealed effective dates and raised TDIU.
- Board found substantial compliance with remand instructions and that development was adequate; remanded only the radiculopathy effective-date issues and TDIU for AOJ action.
- Key medical findings: spine forward flexion varied (as low as 15–30° on private DBQ Aug 2015; 50° on Feb 2016 exam); left knee demonstrated meniscal tear, episodes of locking/effusion and variable ROM; no consistent objective recurrent instability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Higher spine rating (periods before and after Aug 18, 2015) | Spine warrants >10% pre‑Aug 18, 2015 and >20% since Aug 18, 2015 due to ROM loss, flare‑ups, bowel/bladder symptoms and functional loss | Medical record does not show ROM/ankylosis/episodic incapacitation sufficient for higher schedular ratings | Denied >10% pre‑Aug 18, 2015; granted 40% from Aug 18, 2015–Feb 11, 2016; granted 20% from Feb 12, 2016 onward (no higher) |
| 2. Higher left knee rating (periods pre‑Oct 22, 2007 and since Jul 26, 2012) | Knee warrants >10% earlier and >20% since Jul 26, 2012 based on locking, effusion, ROM limits, instability and surgeries | Objective exams do not show recurrent subluxation/instability or ROM limits meeting higher codes; some private DBQ findings are internally inconsistent | Denied >10% prior to Oct 22, 2007; granted 20% for Feb 1, 2008–May 27, 2009 and Sep 1, 2009–Jul 25, 2012; denied >20% since Jul 26, 2012 |
| 3. Earlier effective date for left lower‑extremity radiculopathy | Effective date should be earlier than Aug 18, 2015 | RO assigned Aug 18, 2015; AOJ to address procedural requirements | REMANDED to AOJ for statement of the case on effective date and notice to claimant |
| 4. TDIU entitlement | Veteran cannot work due to service‑connected back disability; TDIU should be granted | VA needs to provide required §5103(a) notice and fully adjudicate before Board | REMANDED to AOJ for notice and adjudication of TDIU (due process) |
Key Cases Cited
- Dyment v. West, 13 Vet. App. 141 (1999) (substantial compliance with Board remand instructions standard)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (record can raise TDIU issue requiring adjudication)
- Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (permissible expansion of issues when evidence raises secondary issues)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule for resolving evidence conflicts)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (consideration of functional loss due to pain when evaluating ROM)
- Thun v. Peake, 22 Vet. App. 111 (2008) (standard for extra‑schedular referral when schedular criteria do not reasonably contemplate severity)