Daniel J. Murray v. Eric K. Shinseki, Opinion Number 09-0158, decided June 15, 2011 concerns a reduction of a disability that should have been protected.
The veteran had suffered a left knee disability that resulted in 1983 in a 10% rating for recurrent subluxation or lateral instability. Later, the veteran sought a ratings increase and the VA found the left knee had developed arthritis related to the left knee but also found the recurrent subluxation or lateral instability had resolved. This resulted in a 2008 VARO decision that reclassified the veteran’s disability as a left knee injury with arthritis and replaced or eliminated the rating for recurrent subluxation or lateral instability. The Board affirmed in 2008.
The problem is that under 38 CFR section 3.951(b), a disability which has been continuously rated at or above any evaluation of disability for 20 or more years cannot be reduced except upon a showing of fraud.
The VA tried to argue pyramiding applied but the court rejected saying “If the appellant’s symptoms are ‘distinct and separate,’ then the appellant is entitled to separate disability ratings for the various conditions” and citing VA General Counsel Precedent Opinions to support the conclusion that allow for separate disability ratings related to the same knee injury.
The Court really took the VA to task on section 3.951(b) and found the VA effectively eliminated the protected subluxation disability rating because they found it resolved. The VA tried to argue they simply shifted from one rating to another but the Court found the result was to reduce the protected disability.
The Court took the unusual step of reversing the VA’s decision and re-imposing the protected 10% award for the subluxation and assigning a new 10% rating for arthritis.
Decided by Judges Hagel, Moorman and Davis.
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