Single Judge Application, Murray v. Shinseki, 24 Vet.App. 420, 423(2011); Separate Disability Ratings for Separate and Distinct Symptoms

Excerpt from decision below: "In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423(2011) (quoting Esteban, 6 Vet.App. at 262). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3509 ROBIN L. KERNS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY,Judge: U.S. ArmyveteranRobinL.Kerns, whois self-represented, appeals from an August 15, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for (1) a right knee disorder; (2) memory loss and impaired concentration, to include as a chronic disabilityresultingfrom an undiagnosed illness; and (3) an adjustment disorder, to include as a chronic disability resulting from an undiagnosed illness.1 Record (R.) at 3-24. This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the portion of the August 2011 Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration and will remand that claim for readjudication consistent with this decision. The Court The Board also remanded theissuesof entitlement to(1) serviceconnectionforshortnessofbreathandasthma, to include as a chronic disability resulting from an undiagnosed illness; ( 2) service connection for a menstrual disorder, to include as a chronic disability resulting from an undiagnosed illness; ( 3) an effective date prior to February 24, 2010, for a 40% evaluation for fibromyalgia; and (4) an effective date prior to March 7, 2007, for a total rating based on individual unemployability (TDIU). Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those issues at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F. R. § 20.1100(b). 1 will affirm the Board's decision as to her claims for service connection for right knee and adjustment disorders. I. FACTS Ms. Kerns served on active duty for training from June 1990 to October 1990 and on active duty from February 1991 to October 1991, including service in Southwest Asia in support of Operations Desert Shield and Desert Storm. R. at 4, 581. Following service, she was awarded service connection for a disabilitymanifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder. R. at 1282-89. In August 2005, Ms. Kerns filed a claim for service connection for, inter alia, a right knee disorder, memoryloss and impaired concentration, and an adjustment disorder. R. at 991-1019. An October 2005 VA progress note indicates that Ms. Kerns had a diagnosis " most consistent with an Adjustment Disorder related to her medical conditions." R. at 981. Subsequent VA medical records also contain diagnoses of an adjustment disorder due to or related to physical pain. R. at 961, 963. However, a January 2006 VA medical examination concluded that Ms. Kerns " does not meet [the] diagnostic criteriaforanypsychiatricdiagnosis"andexplained thatherreportedsymptoms were"not the result of any psychiatric disorder" and "may be attributable to her medication" for treating her fibromyalgia with fatigue. R. at 717. The following month, a VA physician stated that Ms. Kerns's knee pain was "part of her fibromyalgia and chronic pain with possible superimposed arthritis." R. at 312. In the meantime, a VA regional office (RO) sent Ms. Kerns a letter notifying her of the evidence she needed to submit to substantiate her August 2005 claims for direct and secondary service connection. See R. at 943 (outlining the evidence needed "to support [a] claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability"), 944 (outlining the evidence needed "to support [a] claim for service connection"). In January 2007, the RO denied entitlement to service connection for a right knee disorder, memorylossandimpairedconcentration,andanadjustment disorderbecauseit foundthatMs. Kerns did not have a current knee or psychiatric disability that was compensable for VA purposes. R. at 2 652-59. She filed a timely Notice of Disagreement (NOD) with that decision and subsequently perfected her appeal to the Board. R. at 198-99, 604-09. In May 2007, Ms. Kerns underwent a VA medical examination, at which time she complained of muscle pain, joint pain and stiffness, difficulty sleeping, abdominal cramping, and irregular menses. R. at 224-25. The examiner opined that "[a]ll complaints except sleep apnea belong to a diagnosis of fibromyalgia." R. at 225. In June 2007, the RO issued a decision recharacterizing Ms. Kerns's service-connected disability manifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder as fibromyalgia with fatigue. R. at 200-11. The RO also acknowledged that Ms. Kerns raised the issue of entitlement to TDIU and deferred a decision on that issue pendingthe receipt of a completed unemployabilityquestionnaire. R. at 204. Laterthat month, the RO issued a decision denying entitlement to TDIU. R. at 39.2 In October 2007, the RO denied a claim for an increased evaluation for fibromyalgia with fatigue. Id. It appears that Ms. Kerns timely appealed that denial, as well as the RO's previous denial of entitlement to TDIU, to the Board. Id. In October 2009, the Board issued a decision remanding the issues of entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorder; an increased evaluation for fibromyalgia with fatigue; and TDIU for further development. R. at 36-53. Pursuant to that remand order, Ms. Kerns underwent a VA psychiatric examination in February2010. R. at 446-52. Afterreviewingthe claims file, recording Ms. Kerns's complaints, and performing a mental status examination and other psychological tests, the examiner concluded that Ms. Kerns did "not meet the [Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)] criteria for the diagnosis of an adjustment disorder or anyother psychiatric disorder." R. at 451. The examiner opined that Ms. Kerns reported "difficulty with her memory and concentration, which, by definition, is part of her already service-connected fibromyalgia." R. at 452. The examiner also The Court notes that the record of proceedings does not contain a copy of that decision and several other documents related to the development and adjudication of Ms. Kerns's entitlement to TDIU and an increased evaluation for fibromyalgia with fatigue. The Secretary also did not provide that information in his brief. Therefore, the procedural history for those issues is largely derived from the summary of those issues included in the October 2009 Board decision, cited above. 2 3 explained that there were "not any psychiatric symptoms . . . that are separate from [Ms. Kerns's] already service-connected and diagnosed fibromyalgia." R. at 452. It appearsthatMs. Kerns alsounderwentaVAjointsexamination in February2010, although that examination report is not contained in the record of proceedings. See R. at 385 (RO summary of the February 2010 VA joints examination). According to the RO, that examination revealed an increasein Ms. Kerns's fibromyalgiasymptoms, includingconstant, refractoryjoint painandfatigue. Id. Based on that examination, the RO issued a November 2010 Supplemental Statement of the Case(SSOC) increasingthedisabilityevaluation forfibromyalgiawithfatigueto40%,themaximum schedular evaluation for that disability, and awarding entitlement to TDIU. R. at 393-417. In February 2011, the RO issued a decision review officer decision implementing those awards. R. at 358-63, 382-90. The cover letter accompanying that decision instructed Ms. Kerns to submit a written NOD if she disagreed with that decision and to refer to the enclosed VA Form 4107, Your Rights to Appeal Our Decision, for more information on her right to appeal. R. at 362-63. In April 2011, Ms. Kerns filed an NOD, stating that she wished to appeal the effective dates assigned for the increased evaluation for fibromyalgia with fatigue and the award of TDIU. R. at 341-43. In August 2011, the Board issued the decision currentlyon appeal, which denied entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorderandremandedtheissues ofentitlementtoearliereffectivedatesforfibromyalgia with fatigue and TDIU. Record (R.) at 3-24. The Board determined that Ms. Kerns's claimed right knee pain and psychiatric problems were symptoms of her service-connected fibromyalgia with fatigue, such that separatelycompensating those symptoms would violate the regulatoryprohibition against pyramiding. R. at 11-19. The Board also stated that "[s]he did not argue [in her April 2011 NOD] that the 40[%] evaluation for fibromyalgia was inadequate" and "deem[ ed] that portion of her appeal to be satisfied." R. at 21. This appeal followed. 4 II. ANALYSIS A. Claims for Service Connection Currently on Appeal As an initial matter, Ms. Kerns argues that VA did not inform her of the information and evidence necessary to establish secondary service connection for her claimed right knee disorder, memory loss and impaired concentration, and adjustment disorder. Appellant's Brief (Br.) at 2. However, as the Secretarycorrectlynotes, the record contains a January2006 pre-adjudication letter from the RO that set forth the elements necessary to support a "claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability." R. at 943. Ms. Kerns has not explained how this notice was deficient or how she was otherwise prejudiced by it. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that " the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"). Therefore, her argument must fail. Ms. Kerns next argues that the Board failed to consider whether her right knee disorder, memory loss and impaired concentration, and adjustment disorder may be service connected secondary to her fibromyalgia with fatigue. See Appellant's Br. at 1-3. She also challenges the Board's finding that her claimed conditions are symptoms of her service- connected fibromyalgia, rather than separate disabilities related to it. See id. The Secretary disputes her contentions and asserts that the Board's findings are plausible based on the record and supported by an adequate statement of reasons or bases. See Secretary's Br. at 7-9. The Court will address these arguments separately with respect to each of Ms. Kerns's claimed disabilities. 1. Applicable Law "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity . . . are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2012). However, "[t]he evaluation of the same disability under various diagnoses," a practice called pyramiding, "is to be avoided." 38 C.F.R. § 4.14 (2012). The rationale for the prohibition on pyramiding is that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment" suffered. Brady v. Brown, 4 Vet.App. 203, 5 206 (1993). When determining whether separate evaluations are warranted, "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet.App. 259, 262 (1994). In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423 (2011) (quoting Esteban, 6 Vet.App. at 262). The Board's attribution of certain symptoms to certain disabilities is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38U.S.C. §7261(a)(4);see Murray, 24 Vet.App. at 423. "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the Board is required to provide a written statement of reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enablea claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 2. Right Knee Disorder Contrary to Ms. Kerns's argument, the Board expressly addressed whether she was entitled to service connection for a right knee disorder secondaryto her service- connected fibromyalgia with fatigue, but determined that her right knee symptoms did not represent a separate disability from her fibromyalgia with fatigue. R. at 11-14. Specifically, the Board explained that "the majority of the Veteran's doctors have either found the knee to be normal, or like the December 2005/February2006 and February 2010 doctors[,] have specifically attributed this pain to her fibromyalgia[,] which is a disability for which service connection has already been established." R. at 13. 6 To the extent that any right knee symptoms are attributable to fibromyalgia, the Board correctlyconcluded that those symptoms are alreadyaccounted for and compensated byMs. Kerns's 40% evaluation for fibromyalgia with fatigue, which is based on, inter alia, "widespread musculoskeletal pain and tender points." 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025 (2012). A note to that DC states that "widespread pain" includes "pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton . . . and the extremities." Id. (emphasis added). Thus, as the Board found, separately compensating Ms. Kerns for right knee pain that has been attributed by her doctors to her service- connected fibromyalgia would constitute pyramiding because that pain is not distinct and separate from her fibromyalgia symptoms, for which she is already being compensated. See Brady and Esteban, both supra; 38 C.F.R. § 4.14. The Court, therefore, is not persuaded that the Board committed clear error in that regard. See Previous HitMurrayNext Document, 24 Vet.App. at 423. The Board also acknowledged that the record contains two diagnoses of right knee disorders separate from fibromyalgia–a March 1996 diagnosis of patellofemoral syndrome and a February 2010 diagnosis of minimal degenerative changes of the knee. R. at 13-14. The Board, however, found that they were not related to Ms. Kerns's service. R. at 14. The Board explained that Ms. Kerns's diagnosis of patellofemoral syndrome was made "more than four and a half years after discharge from service," "neither the examiner nor the Veteran attributed this syndrome to active service," "this diagnosis has not been repeated," and it "has not been made since service connection for fibromyalgia was established." R. at 13. The Board also stated that there was "no evidence of degenerative changes during service," the diagnosis of degenerative changes of the right knee "was made many years after the end of the one[-]year presumptive period" for service connection for arthritis, "every X-ray study dated prior to February 2010" was negative for arthritis, "[t]here is no medical opinion that relates the current degenerative changes to any injury or event in active service or to any service[-]connected disability," and "the Veteran herself does not relate the degenerative changes to any specific trauma in service." R. at 13-14. In light of the foregoing statements, and absent evidence of a relationship to service, the Court does not discern any clear error in the Board's finding that Ms. Kerns's diagnosed patellofemoral syndrome and degenerative changes of the right knee were not subject to service 7 connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (reiterating that a nexus between the claimed in-service disease or injury and the current disability is a necessary element of service connection); Russo v. Brown, 9 Vet.App. 46, 50 (1996) ( explaining that the Court reviews the Board's determination regarding entitlement to service connection under the "clearly erroneous" standard of review). 3. Adjustment Disorder The Board also determined that Ms. Kerns was not entitled to service connection for an adjustment disorder on a primary or secondary basis. R. at 17. Significantly, the Board found that a preponderance of the evidence was against a finding that Ms. Kerns had a current psychiatric disability separate from the psychiatric symptoms of her fibromyalgia with fatigue. R. at 17. In support of that finding, the Board pointed to various VA medical examinations that were all negative for a psychiatric disability. Id. The Board also acknowledged that the record contains clinical assessments and one diagnosis of an adjustment disorder, as well as notations of depression, but found that "each of the examiners who ha[s] noted an adjustment disorder [ or] depression . . . has also attributed this to the fibromyalgia, the chronic fatigue, or both." R. at 18. The Board then emphasized that "none of these examiners [has] opined that the Veteran has a psychiatric disability that is a separate entity from the fibromyalgia." Id. A review of the record confirms that finding, and Ms. Kerns's 40% evaluation takes into account various psychiatric symptoms, such that compensating her separately for those symptoms would constitute pyramiding. See 38 C.F.R. §§ 4.14 (prohibiting pyramiding), 4.71a, DC 5025 (listing fatigue, sleep disturbances, headaches, depression, and anxiety as symptoms of fibromyalgia). Thus, because Ms. Kerns's psychiatric symptoms have all been attributed to her service-connected fibromyalgia with fatigue, the Court concludes that the Board did not err in denying her secondary service connection for an adjustment disorder. See Brady and Esteban, both supra. Moreover, absent any separately diagnosed psychiatric disability, Ms. Kerns is not entitled to service connection for that claimed condition on a direct basis. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) ("Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof 8 of present disability there can be no valid claim." (citation omitted)); see also Shedden, 381 F.3d at 1166-67 (outlining the elements of service connection). Therefore, the Board also discerns no clear error in the Board's denial of her claim for entitlement to service connection for an adjustment disorder on a direct basis. See Russo, 9 Vet.App. at 50. 4. Memory Loss and Impaired Concentration a. Reasons or Bases For reasons that remain unclear, the Board combined its analysis of Ms. Kerns's claim for serviceconnection formemorylossandimpairedconcentrationwith herclaimforserviceconnection for an adjustment disorder. R. at 14-19. As explained above, the Board found that all of Ms. Kerns's reported psychiatric symptoms, which the Board stated included memory loss and concentration problems, were attributable to her service-connected fibromyalgia with fatigue. R. at 17-18. The Board then concluded that the 40% schedular evaluation for fibromyalgia with fatigue adequately compensated Ms. Kerns for her memory loss and impaired concentration, such that any additional compensation for those symptoms would constitute pyramiding in violation of § 4.14. R. at 18. Although the Board found that "the rating criteria for the Veteran's fibromyalgia with fatigue take into consideration the symptoms that have been identified," DC 5025 does not list neuropsychological symptoms, such as memory loss and impaired concentration, among its descriptive symptoms. Id.; see 38 C.F.R. § 4.71a, DC 5025. Moreover, contrary to the Board's finding, VA classifies memory loss as a neuropsychological symptom, not a psychiatric symptom. See Compensation for Certain Diagnosed Illnesses, 60 Fed. Reg. 6660, 6601 ( Feb. 3, 1995) (explaining that, "consistent with current VA rating procedures," "memory loss is included within the category 'neuropsychological signs or symptoms'"). Thus, absent any further explanation from the Board, it is unclear why the Board accepted the February2010 VA examiner's finding that Ms. Kerns's memory loss and impaired concentration were part of her fibromyalgia and how the Board arrived at its conclusion that she was being compensated for those symptoms under her schedular evaluation for fibromyalgia. See Gilbert, 1 Vet.App. at 57. The Court therefore concludes that the Board's statement of reasons or bases for theportion ofits decisionaddressingentitlementto serviceconnection formemorylossandimpaired concentration was inadequate. 9 b. Extraschedular Evaluation The Court further notes that, although Ms. Kerns is currently in receipt of the maximum schedularevaluationforherfibromyalgia, shemayneverthelessreceiveanextraschedularevaluation for a disability picture not captured by the schedular criteria. See Thun v. Peake, 22 Vet.App. 111, 115 (2008) (explaining that referral for extraschedular consideration is warranted when, inter alia, "the schedular evaluation does not contemplate the claimant's level of disability and symptomatology");38C.F.R.§3.321(b)(providingforextraschedularevaluation in "theexceptional case where the schedular evaluations are found to be inadequate"). The Board, however, did not analyze whether she was entitled to referral for extraschedular consideration. See id. ("When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specificallyadjudicatethe issue of whetherreferral for an extraschedularratingis warranted."). That deficiency rendered the Board's statement of reasons or bases for its decision on this claim inadequate. See 38 U.S.C. § 7104(a) (requiring the Board to consider and discuss in its decision all "applicable" provisions of law and regulation); Gilbert, 1 Vet.App. at 57. The Court therefore concludes that vacatur and remand are warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ("WheretheBoardhasincorrectlyappliedthelaw,failedto provide anadequatestatementofreasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). Ms. Kerns is free to submit additional argument and evidence as to her claim for memory loss and impaired concentration on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 ( 1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112. B. Other Claims Not Currently on Appeal Ms. Kerns alsoasserts thatshe" didnotreceivenotificationregardingassignmentofdisability rating and effective dates [for fibromyalgia with fatigue] until after initial adjudication of the claim." Appellant's Br. at 3. It appears that she is arguing that the Board's determination that she did not 10 appeal the 40% evaluation assigned for that service-connected disabilitywas clearlyerroneous. The Court disagrees. The record reflects that the RO sent Ms. Kerns a letter in February 2011 informing her that she had been awarded a 40% evaluation for fibromyalgia with fatigue and providing her with instructions on how to appeal that determination, should she disagree with it. R. at 362-63. That letter also expressly referred to the enclosed VA Form 4107, which outlines the specific steps for disagreeing with a VA decision and perfecting an appeal to the Board. Id. It is unclear, however, why the Board sent Ms. Kerns a letter requesting that she file an NOD given that she had previously filed one with respect to the RO's October 2007 denial of her claim for an increased evaluation for fibromyalgia: that claim remained in appellate status even after the RO issued the November 2010 SSOC awarding her a 40% evaluation for that condition and the February 2011 decision review officer decision implementing that award. See AB v. Brown, 6 Vet.App. 35, 38 (1993) (holding that "once a claim is in 'appellate status' by virtue of a previously filed NOD, the claimant may not file an additional NOD which could confer jurisdiction on this Court as to that claim"). In other words, had the Board required Ms. Kerns to file a second NOD and Substantive Appeal to obtain appellate review of the award of the increased evaluation for fibromyalgia with fatigue, it would have committed error. See id. However, the Board did not do so here. Instead, the Board addressed Ms. Kerns's claim for an increased evaluation for fibromyalgia with fatigue and (1) remanded the issue of entitlement to an earlier effective date for the 40% evaluation for that condition; and (2) determined that her appeal of the schedular evaluation for fibromyalgiawassatisfiedbecauseshehadalreadybeenawardedthemaximum schedularevaluation available under the applicable DC. R. at 19. Because the Board was correct that DC 5025 does not provide for a schedular evaluation for fibromyalgia greater than 40%, the Court discerns no error in the Board's treatment of the schedular evaluation portion of her fibromyalgia claim. See AB, 6 Vet.App. at 38 ("[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seekingthe maximum benefit allowed bylaw and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded."). Ms. Kerns finally argues that VA has not yet issued an SSOC regarding the issues remanded by the Board. See Appellant's Br. at 3. Those issues, however, are not before the Court at this time 11 because a remand is not a final Board decision that the Court has jurisdiction to review. See Howard, 220 F.3d at 1344; Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20. 1100(b). To the extent that Ms. Kerns believes that VA's delay in issuing an SSOC amounts to an arbitrary refusal to act, her proper recourse is to file with the Court a petition for extraordinary relief in the nature of a writ of mandamus to attempt to compel that action. See Costanza v. West, 12 Vet. App.133, 134 (1999) (per curiam order). III. CONCLUSION Upon consideration of the foregoing, the portion of the August 15, 2011, Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration is VACATED and the claim is REMANDED for readjudication consistent with this decision. The portions of the Board decision addressing her claims for service connection for right knee and adjustment disorders are AFFIRMED. DATED: November 7, 2012 Copies to: Robin L. Kerns VA General Counsel (027) 12

Single Judge Application, Separate Disability Ratings When Symptoms do not Overlap, C.F.R. 4.25, Murray v. Shinseki, 24 Vet.App.(2011)

Excerpt from decision below:, ""Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatologyof the other . . . conditions." 6 Vet.App. 259, 262 (1994) (emphasis in original). If the appellant's symptoms are "distinct and separate,"then the appellant is entitled to separate disability ratings for the various conditions. Id. =============== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0504 JAMES H. THAXTON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, James H. Thaxton, appeals through counsel an October 19, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to an initial rating in excess of 10% for residuals of a right knee injury, with mild traumatic tricompartmental arthritis and pain (right knee disability), for the period prior to August 1, 2006. Record (R.) at 3-21. Both parties filed briefs, and the appellant filed a reply brief. The appellant seeks reversal of the Board's decision denying him a separate 10% disability rating for symptoms that he argues are not contemplated under the current Diagnostic Code assigned to his right knee condition. The Secretary concedes that a remand, but not reversal, is warranted on the matter. The appellant does not raise any argument with respect to the Board's grant of an initial rating of 60%, but no higher, for his right knee disability for the period beginning November 1, 2007. Accordingly, the Court considers abandoned on appeal any challenge to this latter matter. See Ford v. Gober, 10 Vet.App. 531, 535 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d 1328 (Fed. Cir. 1997).1 Because there is no final Board decision regarding the remanded matter of entitlement to an initial compensable rating for a right knee neurological disorder (claimed as nerve damage), the Court lacks jurisdiction to consider that claim. See 38 U.S.C. § 7252(a) (providing that Court's jurisdiction is generally limited to review of final Board decisions); Kirkpatrick v. Nicholson, 417 F.3d 1361, 1365 (Fed. Cir. 2005) (holding that Board's remand order "was not a decision within the meaning of section 7252(a)"); see also Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1 This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S. C. §§ 7252(a) and 7266(a). A single judge mayconduct this review because the outcome in this case is controlled bythe Court's precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the following reasons, the Court will affirm in part and reverse in part the Board's October 2009 decision. I. FACTS Mr. Thaxton served on active duty in the U.S. Army from March 1959 to March 1962. Record (R.) at 888. He underwent surgery on his right knee in service. See R. at 733. A VA regional office (RO) granted service connection for the residuals of a right knee injury, with traumatic arthritis and pain, andassigneda 10% disabilityratingunder 38 C. F.R. § 4.71a, Diagnostic Codes (DCs) 5010-5261, effective August 26, 2003.2 R. at 728-35. Mr. Thaxton appealed and, in his Notice of Disagreement, he noted that a doctor told him that x-rays showed that he was missing a lot of cartilage. In November 2007, the Board remanded the matter for further development. R. at 492-96. Following development of the claim, the Board issued the October 2009 decision now on appeal. The Board found that"aseparate10 percent ratingunder DC 5259 would doublycompensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding."3 R. at 18; see 38 C.F.R. § 4.14 (2011) ("The evaluation of the same disability under various diagnoses is to be avoided."). This appeal followed. 1998). Limitation of motion of the right knee is the key consideration when assigning a disability rating for traumatic arthritis. See 38 C.F.R. § 4.71a, DC 5010 (providing that arthritis due to trauma will be rated in the same manner as degenerative arthritis), 5003 (in turn providing that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint involved), 5260 ( providing the schedule of ratings for limitation of flexion of the leg), 5261 (providing the schedule of ratings for limitation of extension of the leg). As relevant here, under DC 5261, when leg extension is limited to 10 degrees, the disability rating is 10%. 38 C.F.R. § 4.71a, DC 5261. 3 2 The VA Schedule of Ratings for the knee include DC 5258 and 5259: 5258 5259 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint . . . .20 Cartilage, semilunar, removal of, symptomatic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 II. ANALYSIS The appellant contends that the Board erred in denying a separate compensable disability rating for the symptomatic removal of his semilunar cartilage under DC 5259 because it wrongly found symptoms due to the removal of his cartilage as being "contemplated by his current rating of 10 percent under DC 5010-5261," R. at 18. App. Br. at 8-9. The Secretary argues that the Court should vacate and remand the matter because the Board failed to provide an adequate statement of reasons or bases for its explanation that the appellant's right knee symptoms did not warrant a separate rating under DC 5259. "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." 6 Vet.App. 259, 262 (1994) ( emphasis in original). If the appellant's symptoms are "distinct and separate," then the appellant is entitled to separate disability ratings for the various conditions. Id. In addition, two VA General Counsel Precedent Opinions, which are binding on VA, indicate that separate evaluations are allowed for separate disabilities arising from the same knee injury. See VA Gen. Coun. Prec. 9–2004 (Sept. 17, 2004) (authorizing separate evaluations forlimitation of leg flexion and limitation of leg extension); VA Gen. Coun. Prec. 23–97 (July 1, 1997) (authorizing separate evaluations for arthritis and subluxation or instability of the knee under Diagnostic Codes 5003 and 5257); see also Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010) ("The Board is 'bound in its decisions by the . . . precedent opinions of the chief legal officer of the Department.'" (quoting 38 U.S.C. § 7104(c))). Murray, 24 Vet.App. 420, 423 (2011). The Board's assignment of a disability rating is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of material fact "is 'clearly erroneous' when [the Court], after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been 3 committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). When applying this standard, if, after reviewing the record in its entirety, the Board's finding of fact is supported by a plausible basis, "the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently." Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U .S. 564, 573-74 (1985)). In this case, the Board found that Mr. Thaxton's right knee is currentlyrated as 10% disabling for the period prior to August 1, 2006, under DC 5010-5261 "for the disease of traumatic arthritis with a residual condition of limitation of extension of the knee," R. at 11. The Board reviewed the evidence of record and stated: [T]he Veteran's right knee disability is manifested by X-ray evidence of arthritis, near full extension and flexion limited to 110 degrees with pain and crepitus, further limitation of motion due to pain after prolonged use, symptomatic removal of semilunar cartilage, and well-healed scars. The Veteran had subjective complaints oflocking,catching,popping,clicking,swelling,flare-ups,andtenderness; however, there is no objective evidence of lateral instability, subluxation, or dislocated semilunar cartilage. R. at 15 (emphasis added). The Board further found: "[A]s there is X-ray evidence of arthritis, the Veteran has been assigned a 10 percent rating based on painful, limited motion." R. at 16. This apparently is based on DCs 5003 and 5010. The Board also stated that "the preponderance of the evidence indicates that the Veteran had a right knee partial meniscectomy, or removal of the semilunar cartilage, during service." R. at 17. The Board then discussed Mr. Thaxton's symptoms in more detail. At the October 2003 VA examination, the Veteran reported occasional swelling, but no mechanical symptoms. The Veteran had a mildly positive McMurray's test and tenderness along the medial and lateral joint lines, but there was no objective evidence of effusion. VA treatment records dated in June and October 2004 reflect that the Veteran reported popping and cracking with occasional locking, catching, and swelling; and physical examination showed pain with the McMurray's test and significant tenderness. At the January 2005 VA examination, the Veteran indicated that his knee would swell at the end of the day after he had been on it for long periods. . . . A November 2005 treatment record indicates that the Veteran reported popping and clicking, but no locking or catching, and he had pain with the McMurray's test. 4 R. at 17-18. Following the discussion of the evidence as quoted above, which did not include a discussion of Mr. Thaxton's limitation of motion, the Board concluded that " the Veteran's right knee was symptomatic as a result of his meniscectomy." R. at 18. The Board, however, then found that (1) "such symptoms are contemplated by his current rating of 10 percent under DC 5010-5261 [(limitation of extension)];" and (2) "a separate 10 percent rating under DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding [under 38 C.F.R. § 4.14]." Id.; see R. at 10, 12 ( citing to § 4.14). The Court concludes that, contrary to the Secretary's position, the Board's statement of its reason for denying the separate rating is adequate for judicial review. The Court further concludes that the Board clearly erred and 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). The Board's determination that Mr. Thaxton is appropriately assigned a 10% rating only under DC 5261, which expressly is for limitation of extension of the knee, contradicts the evidence of record and "fails to adequately reflect a consideration of [Mr. Thaxton's] arthritis and its symptomatology." Murrayt, 24 Vet.App. at 424. At the time that the RO originally assigned Mr. Thaxton his 10% rating under DC 5010-5261 in December 2003, the RO focused on symptoms consisting of"pain when walking up inclines and getting up from a seated position," "mild pain on motion," "some crepitus at the last 30-40 degrees of flexion," and tender joint lines laterally. R. at 733. Subsequently developed evidence included VA medical records recording Mr. Thaxton's reports of (1) "popping and clicking in his knees" (R. at 434 (November 2005 VA progress notes)); (2) "some instability of his right knee when the pain gets to where it hits him suddenly" and"swelling at the end of the day," (R. at 542-43 (January 2005 VA medical record)); (3) "swelling, popping, locking, and catching" and a doctor's statement that he "ordered a knee brace for [Mr. Thaxton] to help him with some instabilityhe is having on long walks" (R. at 573 (October 2004 VA medical records)); and (4) "popping and cracking, and some mechanical symptoms" (R. at 629 (June 2004 VA medical records). The Court notes that symptoms of swelling, popping, clicking, instability, locking, catching, and cracking are not noted in DC 5261 and further notes that the symptom of "locking" is expressly used in DC 5258 in describing a symptom associated with a dislocated cartilage. Indeed, the Court notes that the Secretary concedes that "[n]either [DC 5010 5 nor DC 5261] contemplate[] Appellant's symptomatic removal of semilunar cartilage." Secretary's Br. at 7-8. The Court holds that the appellant is entitled to a 10% rating under DC 5259 for the removal of the appellant's cartilage, which the Board found to be symptomatic, as a separate rating in addition to the current 10% rating for arthritis of the right knee under DC 5003 and 5010. See Murray, 24 Vet.App. at 428 (reversing Board decision and remanding for Board (1) to reinstate protected 10% disability rating under DC 5257 for recurrent subluxation or lateral instability of the left knee; and (2) to assign a separate 10% disability rating for arthritis of the left knee under DCs 5003 and 5010). Accordingly, the Court will reverse the Board's finding that "a separate 10 percent rating under DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding" (R. at 18) and will also reverse the Board's denial of a separate rating under DC 5259. I. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the October 19, 2009, Board decision is REVERSED as to the finding that a separate 10% disability rating under DC 5259 "would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding" (R. at 18) and as to the Board's denial of a separate 10% disability rating under DC 5259 for the appellant's right knee disability for the period prior to August 1, 2006. The matter is REMANDED for adjudication consistent with this decision. The Board decision is otherwise AFFIRMED. DATED: September 30, 2011 Copies to: Virginia L. Carron, Esq. General Counsel (027) 6

Murray v. Shinseki, No. 09-0158, CFR 3.159, 20 Year Protection

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0158
DANIEL J. MURRAY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued April 28, 2011 Decided June 15, 2011)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
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
1The Board also remanded Mr. Murray's claims for increased disability ratings for residuals of a right knee
injury and right knee synovitis, including entitlement to a total disability rating based on individual unemployability,
which are not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of
the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (stating that a Board remand does not
constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b) (1999))).
the improperly revoked disability rating, to pay Mr. Murray disability compensation unlawfully
withheld, and to further readjudicate his claim consistent with this opinion.
I. FACTS
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 38 C.F.R. § 4.71a, Diagnostic Code 5257, for recurrent subluxation2 or
lateral instability of the knee, effective October 31, 1983.
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 38 C.F.R. § 3.951(b) because it had been in effect for 20 years.3
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.
2Subluxation is "an incomplete or partial dislocation." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1817
(31st ed. 2007).
3Section 3.951(b), entitled "Preservation of disability ratings," provides in pertinent part:
A disability which has been continuously rated at or above any evaluation of disability for 20 or more
years for compensation purposes . . . will not be reduced to less than such evaluation except upon a
showing that such rating was based on fraud. . . . The 20-year period will be computed from the
effective date of the evaluation to the effective date of reduction of evaluation.
38 C.F.R. 3.951(b) (2010); see also 38 U.S.C. § 110.
2
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 knee. 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 38 C.F.R. § 4.71a, Diagnostic Codes 5260
(limitation of leg flexion) and 5261 (limitation of leg extension), replacing the previously assigned
Diagnostic Code 5257 (recurrent subluxation or lateral instability of the knee), effective March 1,
1993. The regional 4 office explained that it did not assign separate disability ratings for his arthritis
and other residuals of a left knee injury because doing so would "violat[e] the principles of
pyramiding." R. at 39; see 38 C.F.R. § 4.14 (2010) ("The evaluation of the same disability under
various diagnoses is to be avoided.").
In September 2008, the Board issued the decision currently on appeal, which denied Mr.
Murray's claim for an increased disability rating for residuals of a left knee injury with arthritis.
Specifically, the Board determined that, even though Mr. Murray had a 10% disability rating for his
left knee conditions under the newly assigned Diagnostic Codes 5260 and 5261, he did not, in
actuality, demonstrate even the minimum symptoms that would yield a compensable disability rating
under either Diagnostic Code.5 The Board, therefore, mysteriously concluded that Mr. Murray's
"current 10[% disability] rating adequately compensates him for the extent of his pain, including
insofar as it affects his range of motion." R. at 13-14 (citing 38 C.F.R. § 4.71a, Diagnostic Codes
5003 (degenerative arthritis) and 5010 (arthritis due to trauma) (2007)). Moreover, the Board
4Neither the record nor the Board explains this change in effective date.
5Specifically, the Board noted that Mr. Murray had "at most, slight limitation of flexion in his left knee,
insufficient to warrant even the lowest possible compensable disability evaluation under Diagnostic Code 5260," and
"full extension" such that "a separate compensable rating is not warranted under Diagnostic Code 5261." R. at 13. The
Board also found that there was "no objective clinical indication . . . that his left knee pain causes additional functional
impairment over and beyond that objectively shown, even when his symptoms are most problematic." R. at 14.
3
acknowledged that separate disability ratings may be assigned for arthritis and instability of the knee
under Diagnostic Codes 5003 and 5257, respectively, see VA Gen. Coun. Prec. 23-97 (July 1, 1997),
but determined that separate disability ratings for these conditions were not warranted in this case
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 examination reports," and "VA
examinations were negative for objective evidence of instability or locking, as his left knee ligaments
were stable." R. at 14 (citing 38 C.F.R. § 3.951(b)). Based on the foregoing, the Board concluded
that Mr. Murray's current 10% disability rating for residuals of a left knee injury with arthritis,
evaluated under Diagnostic Codes 5260 and 5261, was "most appropriate" "[c]onsidering the rating
criteria in relation to the relevant evidence of record." R. at 13.
II. THE PARTIES' ARGUMENTS
On appeal, Mr. Murray argues that the Board failed to properly apply 38 C.F.R. § 4.25(b)
when it determined that he was not entitled to separate disability ratings for his later diagnosed
arthritis of the left knee and for his other service-connected residuals of a left knee injury. Mr.
Murray also contends that his 10% disability rating for the residuals of a left knee injury, effective
October 31, 1983, which did not include arthritis of the left knee, was protected from reduction under
38 C.F.R. § 3.951(b), and that VA impermissibly disturbed this protected disability rating when it
began evaluating his left knee conditions cumulatively under Diagnostic Codes 5260 and 5261.
In response, the Secretary argues that the Board's determination that Mr. Murray was not
entitled 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 § 4.14. The Secretary also contends that "shifting [diagnostic
codes] is not the equivalent of reducing [Mr. Murray's] disability rating for his left knee condition."
Secretary's Brief (Br.) at 8-9.
III. ANALYSIS
"Except as otherwise provided in [the rating] schedule, the disabilities arising from a single
disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated
4
separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2010). In Estaban v.
Brown, the Court explained that, when determining whether to assign separate disability ratings
under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is
duplicative of or overlapping with the symptomatology of the other . . . conditions." 6 Vet.App. 259,
262 (1994) (emphasis in original). If the appellant's symptoms are "distinct and separate," then the
appellant is entitled to separate disability ratings for the various conditions. Id. In addition, two VA
General Counsel Precedent Opinions, which are binding on VA, indicate that separate evaluations
are allowed for separate disabilities arising from the same knee injury. See VA Gen. Coun. Prec. 9-
2004 (Sept. 17, 2004) (authorizing separate evaluations for limitation of leg flexion and limitation
of leg extension); VA Gen. Coun. Prec. 23-97 (July 1, 1997) (authorizing separate evaluations for
arthritis and subluxation or instability of the knee under Diagnostic Codes 5003 and 5257); see also
Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010) ("The Board is 'bound in its decisions by the . . .
precedent opinions of the chief legal officer of the Department.'" (quoting 38 U.S.C. § 7104(c))).
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 § 4.25(b)] as a disability arising from a single disease entity, which is to
be rated separately and then combined with all other service connected disabilities."). Although the
Court does not necessarily accept Mr. Murray's characterization of his knee injury as a "single
disease entity," the Court agrees that a review of the record reveals that the Board's decision is clearly
erroneous.
Specifically, it is entirely unclear from the Board decision whether and to what extent the
Board considered § 3.951(b), which provides for the protection of disability ratings that are in effect
for 20 or more years, see supra at __, slip op. at 2 n.3. Both parties agree this regulation applies in
this case. The Board, however, only referenced this regulation once in its 15-page decision:
6The Court does not have jurisdiction to address Mr. Murray's argument that his arthritis in the left knee and
right knee are separate disabilities arising from a single disease entity and should have been rated separately because his
claim for an increased disability rating for right knee synovitis, with arthritis, was remanded by the Board. See 38 U.S.C.
7266(a); Howard, 220 F.3d at 1344; 38 C.F.R. § 20.1100(b).
5
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).
R. at 14 (emphasis added). Aside from this citation, the Board did not discuss § 3.951(b) at all or
explain how it impacted the Board's analysis of Mr. Murray's claim.
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 § 3.951(b) in any subsequent adjudication involving his left knee disability,
regardless of the extent of protection afforded by that regulation.7 See 38 U.S.C. § 7104(a) (requiring
that the Board consider and discuss all "applicable provisions of law and regulation"). Without the
benefit of the Board's explanation of how it applied § 3.951(b) to Mr. Murray's claim, the Court is
left to speculate as to the Board's reasoning for its decision. See Gilbert v. Derwinski, 1 Vet.App.
49, 57 (1990) (holding that the Board's statement of reasons or bases for its decision must be
adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate
review in this Court); see also 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written
statement of the reasons or bases for its "findings and conclusions[] on all material issues of fact and
law presented on the record"); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
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%
7At this time, the Court need not decide the extent of protection afforded by § 3.951(b). The Court, however,
notes that this issue may be decided by the U.S. Court of Appeals for the Federal Circuit in the case of Read v. Shinseki,
Docket No. 2010-7100, which is currently on appeal.
6
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 38 C.F.R. § 3.951(b) that prohibit the reduction of a disability evaluation that has been
continuous for 20 or more years.
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 for 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 2003, December 2005, and February 2008 VA examination reports," and "VA
examinations were negative for objective evidence of instability or locking, as his left knee ligaments
were stable." R. at 14. The Board then concluded that Mr. Murray's current 10% disability rating
for residuals of a left knee injury with arthritis, evaluated under Diagnostic Codes 5260 and 5261,
was "most appropriate" "[c]onsidering the rating criteria in relation to the relevant evidence of
record." R. at 13. These determinations by the Board were contrary to the evidence.
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 based
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
7
for recurrent subluxation or lateral instability, effective October 31, 1983. Less than 20 years after
the effective 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 § 3.951(b)
because it had been continuously in effect for 20 years. Accordingly, the Board could not, as it did
in the decision here on appeal, rely on the January 2003 examination and the more recent
examination reports, which do not show instability or subluxation of the left knee, to conclude that
Mr. Murray is no longer entitled to a 10% disability rating based on laxity or instability of the left
knee. The Court holds that a current examination cannot act to reduce a protected disability rating
where the symptoms upon which the disability rating was based are no longer present.
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 development 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 arthritis because the
evidence showed this condition [was] related to [his] service[-]connected left knee injury." Id.
However, without discussing any symptoms of Mr. Murray's arthritis or other left knee conditions,
the regional office summarily concluded that it could not "assign separate evaluations for [his]
limitation of motion and arthritis of the left knee without violating the principles of pyramiding."
Id. Instead, the regional office "included arthritis with [Mr. Murray's] evaluation for service
8
connection for the left knee injury, which is currently evaluated at 10[%] disabling," and purportedly
"continued" his 10% disability rating for residuals of a left knee injury with arthritis under
Diagnostic Codes 5260 and 5261 for limitation of leg flexion and limitation of leg extension,
respectively, retroactively effective March 1, 1993. R. at 39, 41.
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 relation 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 38 C.F.R. § 3.951(b).
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 current
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 38 C.F.R.
§ 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (arthritis due to trauma)).
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, instructs the adjudicator to "rate [the
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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.
38 C.F.R. § 4.71a, Diagnostic Code 5003. With respect to these Diagnostic Codes, the Board
explained that Mr. Murray had, "at most, slight limitation of flexion in his left knee, insufficient to
warrant even the lowest possible compensable disability evaluation under Diagnostic Code 5260"
and "full extension" such that "a separate compensable rating is not warranted under Diagnostic
Code 5261." R. at 13.
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 added under [D]iagnostic [C]ode 5003." 38 C.F.R.
§ 4.71a, Diagnostic Code 5003. However, Mr. Murray was not assigned any disability rating under
Diagnostic 5010 (via Diagnostic Code 5003) based on his left knee arthritis.
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
lateral 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. Murray'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.
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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 or lateral instability and limitation of leg flexion and
extension–had since resolved, Mr. Murray is entitled to a 10% disability rating under Diagnostic
Codes 5003 and 5010 for his arthritis pain.
The 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 a 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
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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.
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