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ROGER J. SCHAFRATH, APPELLANT, V. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE.
By Tbird
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{1 Vet. App. 590} STEINBERG, Associate Judge: The veteran, Roger J. Schafrath, appeals the reduction of his rating for a bone spur of the right elbow from ten percent to noncompensable. The Board of Veterans' Appeals (BVA or Board) upheld the rating reduction based upon a physician's report indicating that there was no limitation of motion in the right elbow. The Board erroneously failed to apply the provisions of _CFR_4.40 38 C.F.R. § 4.40 to determine whether the appellant's compensable rating should be continued because of "functional loss" due to pain, and the provisions of other regulations requiring that the entire recorded history of the disability be considered. Hence, the BVA decision was void ab initio and it is reversed with instructions that the Board order reinstatement of the 10-percent rating. The Board also breached its statutory duty to assist the appellant in developing facts pertinent to the claim and to provide an adequate statement of reasons or bases for aspects of its decision.
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Dingess-Hartman, Kent, and the VCAA
By Tbird
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The Dingess- Hartman CAVC decision of 2006 generated thousands of VARO letters to veterans with VA claims pending as of March 3, 2006. Widows as well as veterans as well as claimants who had received a decision a year prior to the Dingess Hartman enactment date were supposed to also receive this letter. Read More...
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RAYMOND L. SMITH, APPELLANT, V. JESSE BROWN, SECRETARY OF VETERANS AFFAIRS
By Tbird
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{5 Vet. App. 336} FARLEY, Judge: Appellant Raymond L. Smith appeals from a January 3, 1991, decision of the Board of Veterans' Appeals (BVA or Board) which denied his claims of entitlement to service connection for a right knee disability as secondary to his service-connected left knee disability, and to a rating in excess of 10% for postoperative residuals of a left medial meniscectomy (excision of a crescent shaped disk of fibrocartilage attached to the superior articular surface of the tibia, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1005 (27th ed. 1988)) with degenerative joint disease (left knee condition). The Board stated that a preponderance of the evidence did not demonstrate that a causal relationship existed between appellant's service-connected left knee condition and his right knee disorder, and that no more than a slight impairment of the left knee had been shown, thus not warranting an increase in his 10% disability rating. Because the BVA failed to support the determinations made in the January 3, 1991, decision with sufficient reasons or bases, the Court will remand both issues to the Board for readjudication. Read More...
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