Court finds errors in denials of increased rating for left ankle disability and TDIU

Court finds errors in denials of increased rating for left ankle disability and TDIU

Summary

The Veteran served on active duty in the Army from 1973 to 1975.  VA granted service connection for residuals of a left ankle fracture with a noncompensable rating from March of 2003.  This rating was increased to 10% in April of 2005.  The Veteran later filed an appeal to the Board of Veterans’ Appeals seeking an increased rating in excess of 10%.  He underwent two VA examinations for the left ankle disability.  In May of 2013, the Board remanded the claim for the Regional Office (RO) to consider all of the evidence.  The RO, however, continued to deny an increased rating.

Board continues to deny increased rating for left ankle disability

In May of 2015, the Board denied the Veteran a rating in excess of 10% for residuals of his left ankle fracture.  The Veteran appealed this denial to the Court of Appeals for Veterans Claims.  A joint motion for remand in October 2015 stipulated that the Board failed to provide an adequate statement of reasons or bases for its decision.  In February of 2016, the Board increased the Veteran’s rating for residuals of a left ankle fracture to 20% prior to November 22, 2010.  However, it denied a rating in excess of 10% for the period beginning on November 22, 2010.  It also denied entitlement to total disability based on individual unemployability (TDIU).

CCK appeals increased rating and TDIU denial to the Court

CCK successfully appealed to the Court the denial of an increased rating for the Veteran’s service-connected left ankle disability beginning on November 22, 2010, and entitlement to TDIU.  In its decision, the Board found that the Veteran suffered only from moderate limitation of motion. Therefore, he was not entitled to a rating in excess of 10%.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in failing to discuss the Veteran’s functional problems due to his left ankle disability in the context of the relevant rating criteria.  The Court found that the Board was incorrect in stating that the rating schedule contemplates all functional loss resulting from pain.  On this basis, the Court also remanded the case for the Board to consider whether the Veteran’s functional limitations warrant a referral for extraschedular consideration. Finally, the Court agreed that the Board erred in failing to evaluate TDIU based on all of the Veteran’s service-connected disabilities.  The Court set aside the Board’s decision and remanded the issues of entitlement to an increased rating in excess of 10% beginning on November 22, 2010, and TDIU.

Category: Court Wins