Russell W. Burton v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 1691
| Vet. App. | 2011Background
- Burton, a U.S. Army veteran, appeals a Board denial of an initial disability rating for residuals of a left-shoulder injury with surgical repair from 2002 onward.
- He underwent SLAP lesion repair in 1996 and later arthroscopic left-shoulder surgery in 2003.
- The RO granted service connection in 2003 at noncompensable, then issued a 100% temporary rating in May 2003, with subsequent reductions and increases through 2005.
- The Board’s 2009 decision affirmed most ratings but denied an initial rating in excess of 0% for the August 28–December 1, 2002 period.
- Mr. Burton challenged application of § 4.59, potential separate ratings for abduction and flexion, and related evidentiary considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of § 4.59 beyond arthritis | Burton argues § 4.59 applies to painful motion in non-arthritis contexts. | Secretary argues § 4.59 applies only to arthritis claims. | Secretary's interpretation affirmed; § 4.59 applicable beyond arthritis when raised. |
| Adequacy of Board’s consideration of § 4.40 and § 4.59 for 2002 period | Board failed to address September 2002 report showing pain on motion; § 4.59 may yield a compensable rating. | Board discussed § 4.40 and pain on motion; no prejudice shown for other periods. | Remand warranted for August 28–December 1, 2002 period to reconsider § 4.59 and full pain-related functional loss. |
| Two separate ratings for abduction vs. flexion | Two separate 20% ratings should be allowed for distinct limitations. | One shoulder disability; § 4.14 prohibits separate ratings for the same disability. | No error; separate ratings not warranted as the limitations arise from one disability. |
| Remainder of Board decision proper | Remainder affirmed; remand limited to the 2002 period. |
Key Cases Cited
- Cullen v. Shinseki, 24 Vet.App. 74 (2010) (rejects separate ratings for same disability symptoms within a period)
- Robinson v. Peake, 21 Vet.App. 545 (2008) (Board must consider issues reasonably raised by the record)
- DeLuca v. Brown, 8 Vet.App. 202 (1995) (pain on motion and functional loss must be addressed)
- Schafrath v. Derwinski, 1 Vet.App. 589 (1991) (application of law/regulations to claims raised by record)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand appropriate where Board misapplies law or lacks adequate reasons)
- Allday v. Brown, 7 Vet.App. 517 (1995) (adequate reasons or bases required for review)
- Savage v. Shinseki, 24 Vet.App. 259 (2011) (canons of construction applied to regulatory interpretation)
- Smith v. Nicholson, 451 F.3d 1344 (2006) (interpretation of agency regulation given some deference)