13-07 312
13-07 312
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served active duty Apr 1989–Jul 1995 and appealed VA regional office ratings for right ankle traumatic arthritis and low back strain.
- RO previously assigned staged ratings: ankle 10% (pre-1/27/2015) and 20% (after 1/27/2015); low back 10% (pre-1/27/2015) and 20% (after 1/27/2015); Board in Jun 2015 denied increases except confirmed staged ankle/low back ratings.
- Court of Appeals for Veterans Claims remanded, finding the Board failed to adequately address functional loss during flare-ups and improperly relied on weight-bearing tests.
- VA examinations: ankle ROM 0–20° dorsiflexion & 0–45° plantarflexion (2009); 0–10° dorsiflexion & 0–20° plantarflexion (Jan 2015) with crepitus and pain on motion; low back ROM 0–90° (2009) and 0–60° forward flexion with flare-ups (Jan 2015).
- Veteran reported monthly flare-ups causing increased pain and functional limits (reduced walking/standing, limited lifting), used brace and OTC meds during flares; examiners documented pain but no ankylosis or radiculopathy.
- Board reassessed functional loss under §§4.40/4.45 and concluded ankle and low back ratings did not meet criteria for increases beyond the staged ratings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Increase >10% for right ankle before 1/27/2015 | Flare-ups and functional loss warrant higher rating | Objective ROM and exam do not show greater limitation or ankylosis | Denied — no more than 10% pre-1/27/2015 |
| 2) 20% rating for right ankle after 1/27/2015 | Flare-up functional loss might require >20% | Post-1/27/2015 ROM and findings support 20% but not higher | Granted 20% (no higher) after 1/27/2015 |
| 3) Increase >10% for low back before 1/27/2015 | Flare-ups reduce function and could justify higher rating | Pre-1/27/2015 ROM and objective findings support only 10% | Denied — no more than 10% pre-1/27/2015 |
| 4) Increase >20% for low back after 1/27/2015 | Flare-ups and functional loss could support >20% | Jan 2015 ROM supports 20% but not criteria for higher rating (no ankylosis, no incapacitating episodes) | Denied — no more than 20% after 1/27/2015 |
Key Cases Cited
- Francisco v. Brown, 7 Vet. App. 55 (holding present level of disability controls for increased-rating claims)
- DeLuca v. Brown, 8 Vet. App. 202 (requiring consideration of functional loss from pain, fatigability, and flare-ups under §§4.40/4.45)
- Hart v. Mansfield, 21 Vet. App. 505 (staged ratings appropriate when distinct time periods support different ratings)
- Gilbert v. Derwinski, 1 Vet. App. 49 (reasonable doubt rule in VA adjudication)
- Mitchell v. Shinseki, 25 Vet. App. 32 (treatment of noncompensable range of motion under rating criteria)
- Butts v. Brown, 5 Vet. App. 532 (proper selection of diagnostic code for spine disabilities)