Veteranclaims’s Blog

December 2, 2011

Single Judge Application, Impermissible Diagnostic Code Changes, Murray v. Shinseki, 24Vet.App.420, 427 (2011)

Filed under: Uncategorized — veteranclaims @ 3:49 pm

The Court must also consider an issue not raised by Mr. Fobbs, that is, whether VA impermissibly disturbed Mr. Fobbs’s 20% rating under DC 5202, which was protected pursuant to 38 C.F.R. § 3.951(b). See Patton v. West, 12 Vet.App. 272, 283 (1999) (Court’s statutory directive under 38 U.S.C. § 7261 to “decide all relevant questions of law” allows it to raise issues sua sponte, particularly where substantial interests of justice are implicated).
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The Court must also consider an issue not raised by Mr. Fobbs, that is,
whether VA impermissibly disturbed Mr. Fobbs’s 20% rating under DC 5202, which was
protected pursuant to 38 C.F.R. § 3.951(b). See Patton v. West, 12 Vet.App. 272, 283 (1999) (Court’s statutory directive under 38 U.S.C. § 7261 to “decide all relevant questions of law” allows it to raise issues sua sponte, particularly where substantial interests of justice are implicated). “A disability which has been continuously rated at or above any evaluation of disability for 20 or more years . . . will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud.” 38 C.F.R. § 3.951(b) (2011). This Court has recently interpreted this protection to prohibit VA from changing DCs that have been continuous for 20 years, even if the change does not result in a decreased overall rating to the veteran, and even if the symptoms for which the veteran was originally compensated no longer exist. Murray v. Shinseki, 24Vet.App.420, 427 (2011). In Murray, the Court reversed a Board decision that continued the veteran’s same overall rating, but adjusted the veteran’s applicable DC from 5257 to 5260 and 5261. Id. The Court reasoned that “[b]y changing the [DCs] under which Mr. Murray was rated, the Board effectively found that Mr. Murray was no longer entitled to a disability rating under [DC] 5257. . . , thus, in essence reducing that disability rating and thus the disability compensation related to that [DC] to zero.” Id.
3

Mr. Fobbs received a 20% disability rating under DC 5202 in October 1958.
This rating, pursuant to 38 C.F.R. § 3.951(b), became protected and could not be reduced below 20% after October 1978. When VA determined that Mr. Fobbs no longer suffered dislocations, and adjusted his DC from 5202 to 5201, it impermissibly reduced his protected rating under DC 5202 to zero.
The Court will therefore, in accordance with Murray and 38 C.F.R. § 3.951(b), reinstate Mr. Fobbs’s 20% disability rating under DC 5202.”
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U.S. Court of Appeals for Veterans Claims
—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 10-1839
CLAYTON FOBBS, APPELLANT,v.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Clayton Fobbs appeals pro se from a May 5, 2010, decision of the Board of Veterans’ Appeals (Board) that (1) determined that VA’s reduction in disability rating for degenerative osteoarthritis of the left shoulder joint from 10% to 0% under 38 C.F.R.§4.71(a),Diagnostic Code(DC) 5003 was appropriate; (2) denied a disability rating in excess of 30% for residuals of a left shoulder dislocation; (3) denied an earlier effective date prior to July 8, 2005, for the assignment of a 30% disability rating for residuals of a left shoulder dislocation; and (4) denied service connection for a low back disability. For the following reasons, the Court will reverse the Board’s finding that Mr. Fobbs is not entitled to a disability rating in excess of 30% for residuals of a left shoulder dislocation and remand the matter for the Board to reinstate Mr. Fobbs’s 20% rating under DC 5202. The Court will also affirm the Board’s May 2010 determination that VA’s reduction for degenerative osteoarthritis of the left shoulder joint from 10% to 0% under DC 5003 was appropriate.Mr. Fobbs had active service from June 1955 to June 1957. Record (R.) at 453. Mr. Fobbs was originally awarded a 20% disability rating for residuals of a left shoulder dislocation under DC5202 in October 1958. Mr. Fobbs was additionally granted a 10% rating for arthritis under DC 5003in August 2003. A September 2005 VA joints examination showed that he no longer suffered from recurrent dislocations of the left shoulder, but suffered from a compensable degree of limitation of motion. R. at 624-31. In September 2006, the RO adjusted Mr. Fobbs’s disability rating to 30%under DC 5201 because it concluded that DC 5202 was no longer the appropriate rating code.In the decision on appeal, the Board agreed that DC 5202 was no longer the appropriate rating code. R. at 21-22. The Board observed that because there was objective evidence of limited motion, DC 5201 was more applicable to Mr. Fobbs’s condition. The Board explained that becauseDC 5202 did not pertain to limitation of motion, while Mr. Fobbs’s left shoulder dislocation was rated under DC 5202, a separate 10% rating was warranted under DC 5003 for arthritis of the left shoulder. Id. The Board pointed out that because DC 5201 was based entirely on limitation of motion, a separate compensable rating under DC 5003 was not permitted. Id. This appeal ensued.The Court will address two issues. First, do the regulations allow Mr. Fobbs a disability rating under DC 5003 in addition to a rating under DC 5201? Second, the Court will address an issue not raised by Mr. Fobbs, whether VA impermissibly disturbed a disability rating protected under 38 C.F.R. § 3.951(b)?

I. ANALYSIS
In his brief, Mr. Fobbs argues that the Board erred when it reduced his 10% rating for degenerative osteoarthritis of the left shoulder joint to 0% under DC 5003. Appellant’s Informal Br.at 3. He reasons that “[c]ommon knowledge should have prevented the lowering of my 10% award to 0%. No reasonable person can justify or deny the fact that a degenerative condition does not get better but only can worsen. This fact alone proves the lowering of my 10% award from 10% to 0%was improper.” Appellant’s Informal Br. at 4. Mr. Fobbs received a 10% disability rating under DC 5003 for arthritis of the left shoulder in August 2003. VA’s rating schedule specifically instructs rating specialists to rate any limitation of motion that is the result of degenerative arthritis under the DC for the specific joint involved. See38 C.F.R. § 4.71a, DC 5003 (2011). DC 5003 rates degenerative arthritis on “the basis of limitation of motion under the appropriate [DCs] for the specific joint or joints involved.” 38 C.F.R. § 4.71(a),DC 5003. The regulation specifies an additional disability for arthritis is available only when the joint condition is noncompensable under a DC that accounts for limitation of motion. Id.In adjusting Mr. Fobbs’s disability evaluation, the Board noted:2[T]he 2005 VA examination did reveal that the Veteran suffered from a compensable degree of limitation of motion. As such, the applicable [DC] was changed to 5201,since there was objective evidence of limited motion that was 30[%] compensable. Once the Veteran was compensated for a compensable degree of limited motion, a separate 10[%] disability evaluation under [DC] 5003 was not permitted.R. at 21-22.The Board made the determination that Mr. Fobbs was entitled to a 30% disability rating for limitation of motion under DC 5201, instead of a 10% disability rating under DC 5003. The Board correctly noted that Mr. Fobbs is now compensated under DC 5201 for the same manifestation he was previously compensated for under DC 5003–limited range of motion.Because he is compensated under DC 5201 for limitation of motion, the regulations do not allow for an additional disability rating under 5003. Despite the required reduction from 10% to 0% under DC 5003, Mr.Fobbs’s overall rating actually has been increased.The Court must also consider an issue not raised by Mr. Fobbs, that is, whether VA impermissibly disturbed Mr. Fobbs’s 20% rating under DC 5202, which was protected pursuant to38 C.F.R. § 3.951(b). See Patton v. West, 12 Vet.App. 272, 283 (1999) (Court’s statutory directive under 38 U.S.C. § 7261 to “decide all relevant questions of law” allows it to raise issues sua sponte, particularly where substantial interests of justice are implicated).”A disability which has been continuously rated at or above any evaluation of disability for20 or more years . . . will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud.” 38 C.F.R. § 3.951(b) (2011). This Court has recently interpreted this protection to prohibit VA from changing DCs that have been continuous for 20 years, even if the change does not result in a decreased overall rating to the veteran, and even if the symptoms for which the veteran was originally compensated no longer exist. Murray v. Shinseki, 24 Vet.App.420,427 (2011). In Murray , the Court reversed a Board decision that continued the veteran’s same overall rating, but adjusted the veteran’s applicable DC from 5257 to 5260 and 5261. Id. The Court reasoned that “[b]y changing the [DCs] under which Mr. Murray was rated, the Board effectively found that Mr. Murray was no longer entitled to a disability rating under [DC] 5257. . . , thus, in essence reducing that disability rating and thus the disability compensation related to that [DC] to zero.” Id.
3
Mr. Fobbs received a 20% disability rating under DC 5202 in October 1958. This rating,pursuant to 38 C.F.R. § 3.951(b), became protected and could not be reduced below 20% after October 1978. When VA determined that Mr. Fobbs no longer suffered dislocations, and adjusted his DC from 5202 to 5201, it impermissibly reduced his protected rating under DC 5202 to zero.The Court will therefore, in accordance with Murray and 38 C.F.R. § 3.951(b), reinstate Mr. Fobbs’s20% disability rating under DC 5202.Mr. Fobbs presents other underdeveloped arguments. However, because none of these arguments could result in a more favorable outcome to Mr. Fobbs, the Court will not address them further. Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order).

II. CONCLUSION
On consideration of the foregoing, the Court REVERSES the Board’s May 5, 2010, denial of entitlement to a rating in excess of 30% for residuals of the left shoulder dislocation and REMANDS the matter for the Board to reinstate the 20% rating under DC 5202, as well as to continue Mr. Fobbs’s 30% rating under DC 5201. The Court also AFFIRMS the Board’s May 5,2010, determination that the reduction from 10% to 0% under DC 5003 was appropriate.
DATED: November 23, 2011Copies to:Clayton Fobbs, Esq.VA General Counsel (027)4

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