Daniel J. MURRAY, Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee.
No. 09-0158.
United States Court of Appeals for Veterans Claims.
Decided June 15, 2011.
HAGEL, Judge
24 Vet. App. 420
Argued April 28, 2011.
Michael A. Carr, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Leslie C. Rogall, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before HAGEL, MOORMAN, and DAVIS, Judges.
HAGEL, Judge:
Daniel J. Murray appeals through counsel a September 18, 2008, Board of Veterans’ Appeals (Board) decision that denied his claim for an increased disability rating for residuals of a left knee injury with arthritis.1 Record (R.) at 3-17. This case is decided by a panel because it presents a novel question of law: Whether a disability evaluation that has been continuously in effect for more than 20 years is considered to have been reduced when VA assigns a new Diagnostic Code to the condition? Because the Board‘s decision denied Mr. Murray the right to retain a disability rating that had been continuously in effect for more than 20 years, the Court will reverse the September 18, 2008, Board decision and remand the matter with instructions to reinstate the improperly revoked disability rating, to pay Mr. Murray disability compensation unlawfully withheld, and to further readjudicate his claim consistent with this opinion.
Mr. Murray served on active duty in the U.S. Army from March 1979 to July 1979 and served on inactive duty for training with the National Guard in June 1982. In December 1983, a VA regional office awarded Mr. Murray VA benefits for residuals of a left knee injury and assigned a 10% disability rating under
In November 2001, Mr. Murray filed a claim for an increased disability rating for residuals of a left knee injury. When that claim was denied, he appealed. In January 2003, the regional office issued another decision denying his claim. In that decision, the regional office found that there was “no laxity” of Mr. Murray‘s left knee at that time, but nevertheless continued his 10% disability rating for residuals of a left knee injury under Diagnostic Code 5257. R. at 327. Mr. Murray appealed that decision.
It is undisputed that on October 31, 2003, while Mr. Murray‘s appeal was pending, his 10% disability rating for residuals of a left knee injury under Diagnostic Code 5257 became protected under
In September 2005, the Board remanded Mr. Murray‘s claim for an increased disability rating for residuals of a left knee injury because the Board found that it was inextricably intertwined with a claim for benefits for left knee arthritis that Mr. Murray raised for the first time in an April 2005 hearing and that had not yet been adjudicated by the regional office.
Pursuant to this remand order, Mr. Murray was provided with a VA medical examination in February 2008. The examiner noted that Mr. Murray did not have any instability of the left knee nor did he suffer from episodes of left knee dislocation or subluxation, but that he had pain and weakness in the left knеe. The examiner then opined that Mr. Murray‘s left knee arthritis was “causally related” to his service-connected knee disabilities. R. at 73.
Based on this examination, the regional office in March 2008 partially granted Mr. Murray‘s claim for benefits for arthritis of the left knee by labeling his arthritis a residual of his in-service left knee injury. As a result, the regional office reclassified his disability as residuals of a left knee injury with arthritis and assigned a 10% disability rating under
II. THE PARTIES’ ARGUMENTS
On appeal, Mr. Murray argues that the Board failed to properly apply
In response, the Secretary argues that the Board‘s determination that Mr. Murray was not entitlеd to separate disability ratings for arthritis of the left knee and for the other residuals of a left knee injury was not clearly erroneous because evaluating those disabilities separately would constitute pyramiding in violation of
“Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerеbrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any.”
Mr. Murray contends that his arthritis is a separate disability from his other left knee conditions, which all arose from his in-service left knee injury, and that the Board committed clear error when it failed to rate these conditions separately.6 See Appellant‘s Br. at 8 (“Arthritis is specifically identified [in
Specifically, it is entirely unclear from the Board decision whether and to what extent the Board considered
In this case, however, the objective evidence does not show instability or subluxation of the left knee, according to the January 2003, December 2005, and February 2008 VA examination reports. In this regard, the Board points out that [Mr. Murray]‘s VA examinations were negative for objective evidence of instability or locking, as his left knee ligaments were stable. See
38 C.F.R. § 3.951(b) .
After October 31, 2003, the 20-year anniversary of the effective date of Mr. Murray‘s initial 10% disability rating for residuals of a left knee injury under Diagnostic Code 5257, VA was required to discuss
Such a deficiency is, at a minimum, indicative of a Board decision containing an inadequate statement of reasons or bases. See Gilbert, 1 Vet. App. at 57. However, the Court concludes that reversal, not remand, is warranted in this case because the only permissible view of the evidence is contrary to the Board‘s decision. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). Specifically, the Court notes that the Board determined that Mr. Murray was entitled to a 10% disability rating for residuals of a left knee injury with arthritis under Diagnostic Codes 5260 and 5261 for limitation of leg flexion and extension without explaining how this disability rating related to the protected 10% disability rating for his previous evaluation under Diagnostic Code 5257 for recurrent subluxation or lateral instability, which did not include the effects of arthritis. The Board‘s determination that Mr. Murray is appropriately assigned a 10% disability rating only under Diagnostic Codes 5260 and 5261 contradicts the evidence of record, disregards the protected disability rating, and fails to adequately reflect a consideration of Mr. Murray‘s arthritis and its symptomatology. Based on the undisputed facts of this case, discussed below, the Court concludes that this determination by the Board effectively reduced Mr. Murray‘s protected disability rating to 0% and assigned a new, separate 10% disability rating. The Board‘s reduction of the disability rating to 0% violated the provisions of
Dissecting the Board‘s statements, the Court notes that the Board determined that a disability rating for symptoms associated with Mr. Murray‘s arthritis of his left knee, in addition to a separate disability rating fоr any other symptoms associated with his left knee, was not warranted in this case because “the objective evidence does not show instability or subluxation of the left knee, according to the January
First, it is undisputed that, because Mr. Murray had a 10% disability rating for his left knee condition for at least 20 years, he could not be rated below 10% for his left knee condition. The question then becomes, what were the residuals of the left knee condition for which he was awarded 10% for those 20 years? For 20 years, VA did not disturb the 10% disability rating that was basеd on laxity of the left knee. Specifically, in December 1983, the regional office found that Mr. Murray‘s left knee was “essentially within normal limits except for mild laxity.” R. at 643. Laxity was the only residual of a left knee injury that Mr. Murray manifested at that time, and there was no evidence of left knee arthritis or limited range of motion. Accordingly, the regional office assigned Mr. Murray a 10% disability rating for residuals of a left knee injury under Diagnostic Code 5257 for recurrent subluxation or lateral instability, effective October 31, 1983. Less than 20 years after the effеctive date of this disability rating, VA examinations dated March 2002 and January 2003 revealed that Mr. Murray no longer suffered from left knee laxity.
At that point, the regional office could have reduced Mr. Murray‘s disability rating for residuals of a left knee injury or maintained his 10% disability rating and switched Diagnostic Codes to more accurately reflect his current symptoms. Instead, in a January 2003 decision, the regional office continued Mr. Murray‘s 10% disability rating for residuals of a left knee injury under Diagnostic Code 5257, even though Mr. Murray no longer demonstrated the residual of laxity that initially entitled him to a compensable disability rating under this Diagnostic Code. Several months later, on October 31, 2003, Mr. Murray‘s 10% disability rating became protected under
For the 20 years that Mr. Murray had been receiving the 10% disability rating, his disability rating for residuals of a left knee injury did not include arthritis of the left knee. As discussed below, Mr. Murray‘s arthritis and the symptomatology associated with it were diagnosed after the 20-year period. In March 2008, the regional office chronicled the devеlopment of Mr. Murray‘s left knee arthritis, noting that he exhibited “mild degenerative changes of the left knee” in November 2003, that he was diagnosed with “minimal arthritic changes of the left knee” in December 2005, and that a VA examiner opined in February 2008 that his left knee arthritis was related to his in-service knee injury. R. at 39. The regional office “granted service connection for left knee
Notably, the regional office did not explain why a change of Diagnostic Codes was warranted and did not discuss whether Mr. Murray currently had recurrent subluxation or lateral instability. Then, in September 2008, the Board denied Mr. Murray‘s claim for an increased disability rating for residuals of a left knee injury with arthritis because it concluded that his current 10% disability rating evaluated under Diagnostic Codes 5260 and 5261 was “most appropriate” “[c]onsidering the rating criteria in relаtion to the relevant evidence of record.” R. at 13. By changing the Diagnostic Codes under which Mr. Murray was rated, the Board effectively found that Mr. Murray was no longer entitled to a disability rating under Diagnostic Code 5257 (instability and laxity), thus, in essence, reducing that disability rating and thus the disability compensation related to that Diagnostic Code to zero. In contrast, VA used this reassignment of Diagnostic Codes to award Mr. Murray a 10% disability rating based on the symptomatology (pain) associated with arthritis. By so doing, VA failed to accord Mr. Murray the protection afforded by
The Board errors are multifold: First, the Board ignored the inherent inconsistency in the regional office‘s March 2008 decision that included arthritis in Mr. Murray‘s disability rating for residuals of a left knee injury effective March 1, 1993, more than 12 years before any diagnosis or complaint of arthritis of the left knee. Notably, the Board made no finding that Mr. Murray‘s arthritis began in March 1993, and the Board provided no explanation for the assignment of this effective date. In fact, with regard to Mr. Murray‘s left knee arthritis, the Board only stated that “his сurrent 10[% disability] rating [under Diagnostic Codes 5260 and 5261] adequately compensates him for the extent of his pain, including insofar as it affects his range of motion.” R. at 14 (citing
Second, the Board acknowledged that Mr. Murray‘s arthritis was caused by his left knee injury in service and that Diagnostic Codes 5003 and 5010 are applicable, but did not apply them properly. Diagnostic Code 5010 directs the adjudicator to rate arthritis due to trauma under Diagnostic Code 5003. Diagnostic Code 5003, in turn, instruсts the adjudicator to “rate [the condition] under the appropriate diagnostic codes for the specific joint or joints involved” — in this case, Diagnostic Codes 5260 and 5261 for limitation of leg flexion and leg extension, respectively.
Nevertheless, the Court concludes that Mr. Murray was still entitled to a 10% disability rating for his left knee arthritis because Diagnostic Code 5003 provides that: “When ... the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10[%] is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not аdded under [D]iagnostic [C]ode 5003.”
Third, the Board used current examination reports to retroactively change Mr. Murray‘s Diagnostic Code and, through this artifice, reduce the compensation upon which he relied for 20 years. The Board determined that Mr. Murray should be rated under the Diagnostic Codes for limitation of leg flexion and extension instead of the Diagnostic Code for recurrent subluxation and lаteral instability beginning on March 1, 1993, because “the objective evidence does not show instability or subluxation of the left knee, according to the January 2003, December 2005, and February 2008 VA medical examination reports.” R. at 14. The Court acknowledges that these VA examinations demonstrate that Mr. Murray was not experiencing recurrent subluxation or instability at the time of the examinations; however, they do not address the nearly 10-year period between March 1993 and January 2003 when there was no evidence indicating that Mr. Murrаy‘s laxity of the left knee had resolved. Nevertheless, the regional office retroactively changed the Diagnostic Code under which Mr. Murray‘s residuals of a left knee injury had been previously rated during that period to reflect that he suffered from limitation of leg flexion and extension instead of recurrent subluxation or lateral instability.
In sum, Mr. Murray‘s residuals of a left knee injury initially manifested in laxity of the left knee, which was evaluated under Diagnostic Code 5257 for recurrent subluxation or lateral instability effective October 31, 1983. Mr. Murray‘s laxity resolved in approximately January 2003 and has not returned at a compensable level since then. At that same time, Mr. Murray‘s residuals of a left knee injury began manifesting in limitation of motion. However, the regional office waited until March 2008, nearly 25 years after the effective date of Mr. Murray‘s initial disability rating, to switch the Diagnostic Codes under which his condition was rated to reflect this change in symptoms. For reasons that remain unclear and are unsupported by the medical evidence of record, the regional office selected March 1, 1993, as the effective date for this change in Diagnostic Codes. The regional office also explained that, as of December 2005, Mr. Murray had a diagnosis of left knee arthritis that would entitle him to VA benefits, which apparently also manifested itself in limitation of motion. Accordingly, the regional office concluded that Mr. Murray‘s symptoms of left knee arthritis were duplicative of his symptoms for his other residuals of a left knee injury, preventing the assignment of a separate disability rating. The regional office did not explain why Mr. Murray had suffered from these symptoms for 12 years before being diagnosed with left knee arthritis. The Board then perpetuated the regional office‘s errors by refusing to rate Mr. Murray‘s symptoms of left knee arthritis — i.e., pain on motion — separately. Regardless of whether the symptoms of his other left knee residuals — i.e., recurrent subluxation
Thе Court concludes that the only way the Board could have reached such a result — i.e., denying a disability rating above 10% for left knee residuals including arthritis — would be to reduce Mr. Murray‘s protected disability rating for residuals of a left knee injury to 0% and then to assign a new, separate 10% disability rating for left knee arthritis under Diagnostic Code 5010 (via Diagnostic Codes 5003, 5260, and 5261). This, of course, resulted in the reduction of the corresponding disability compensation. Consequently, the Court will reverse the Board‘s determination that Mr. Murray was entitled to а 10% disability rating for residuals of a left knee injury with arthritis under Diagnostic Codes 5260 and 5261 and remand the matter with instructions to reinstate the 10% disability rating for residuals of a left knee injury that is protected under the appropriate Diagnostic Code and to assign a separate 10% disability rating for arthritis of the left knee under Diagnostic Codes 5003 and 5010, as well as remitting to Mr. Murray the resulting retroactive disability compensation. See Johnson, 9 Vet. App. at 10.
IV. CONCLUSION
Upon consideration of the foregoing, the September 18, 2008, Board decision is REVERSED and the matter REMANDED for readjudication consistent with this opinion.