Daniel J. Murray v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 1284
| Vet. App. | 2011Background
- Murray appeals a Board denial of an increased rating for residuals of a left knee injury with arthritis.
- Initial 10% rating was assigned in 1983 under Diagnostic Code 5257 for laxity/instability.
- In 2003, Murray’s 10% rating continued under 5257 despite evidence showing no laxity; it later became protected under 38 C.F.R. § 3.951(b) after 20 years.
- In 2005–2008, VA examinations showed no instability but indicated arthritis; RO reclassified and rated the condition under 5260/5261 (arthritis-related) rather than 5257.
- The Board in 2008 denied an increased rating, finding the 10% rating under 5260/5261 adequate and not separable from arthritis.
- The Court held the Board violated 38 C.F.R. § 3.951(b) by effectively reducing a protected rating and by improperly combining/rate-separating arthritis with other residuals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board violated § 3.951(b) by reducing Murray's protected 10% rating | Murray contends protection bars reduction after 20 years. | Secretary argues shifting codes is not a reduction and does not affect protection. | Yes; Board reduction of a protected rating violated § 3.951(b). |
| Whether arthritis and other residuals can be rated separately without pyramiding | Arthritis is a separate disability and should be rated separately from other residuals. | Separate ratings would pyramid, violating § 4.14. | The Court approves separate ratings where non-overlapping symptoms exist; the Board erred by conflating codes. |
| Whether the Board adequately discussed or applied § 3.951(b) in its decision | Board failed to discuss § 3.951(b) and its protections. | Board referenced § 3.951(b) but provided insufficient analysis. | Board failed to provide adequate reasons or bases regarding § 3.951(b). |
| Whether Murray is entitled to a 10% rating for arthritis separate from the 10% rating for residuals | Arthritis warrants a 10% rating under 5003/5010; current rating did not reflect this. | Rating under 5260/5261 adequately compensates; separate rating would duplicate symptoms. | Murray is entitled to a separate 10% rating for arthritis under 5003/5010. |
Key Cases Cited
- Esteban v. Brown, 6 Vet.App. 259 (1994) (separate ratings allowed when symptoms do not overlap)
- Johnson v. Brown, 9 Vet.App. 7 (1996) (protection of ratings and reduction standards)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (Board must provide adequate reasons or bases)
- Hornick v. Shinseki, 24 Vet.App. 50 (2010) (precedent opinions bind the Board)