Citation Nr: A21020201
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 181210-1239
DATE: December 17, 2021

ORDER

An initial 100 percent disability rating for osteomyelitis of the left ilium is granted from February 1, 1992, excluding the period from June 3, 1994 to July 6, 1995. 

FINDING OF FACT

The Board is implementing a Court decision that determined a 100 percent rating is warranted for osteomyelitis of the left ilium under Diagnostic Code 5000 for the entire period on appeal.

CONCLUSION OF LAW

The criteria for an initial 100 percent rating for osteomyelitis of the left ilium have been met from February 1, 1992, to the present, excluding the period from June 3, 1994 to July 6, 1995. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5000.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from November 1983 to November 1986 and from June 3, 1994 to July 6, 1995. 

A rating decision was issued under the legacy system in March 2017, which granted service connection for osteomyelitis of left ilium and assigned a 100 percent rating effective November 8, 1986; a 20 percent rating from February 1, 1992 to June 3, 1994; a 20 percent rating from July 6, 1995 and a 10 percent rating from February 1, 1997. In August 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane.  The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in November 2018, which is the decision on appeal. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in. 38 C.F.R. § 20.301.

In a March 2019 decision, the Board denied entitlement to an initial disability rating for osteomyelitis of the left ilium in excess of 20 percent from February 1, 1992 to June 3, 1994; in excess of 20 percent from July 6, 1995; and in excess of 10 percent from February 1, 1997. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 panel decision, the Court reversed the Board's determination that a 100 percent disability rating was not warranted for the entire period on appeal, vacated that portion of the March 18, 2019, Board decision, and remanded the matter for further proceedings consistent with the opinion.

1. Entitlement to an initial disability rating for osteomyelitis of the left ilium in excess of 20 percent from February 1, 1992 to June 3, 1994; in excess of 20 percent from July 6, 1995; and in excess of 10 percent from February 1, 1997 

The April 2021 decision issued by a divided panel of the Court ordered reversal of the Board's determination that a 100 percent disability rating was not warranted for osteomyelitis of the left ilium for the entire period on appeal. The Court interpreted the rating criteria in such a way as to warrant a 100 percent rating for a diagnosis     of chronic osteomyelitis of the pelvis, despite the absence of any current active manifestations of osteomyelitis. Given the Court's determination, the Board is required to award a 100 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5000 for osteomyelitis of the left ilium from February 1, 1992, excluding the period from   June 3, 1994 to July 6, 1995, when the Veteran was on active duty.

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Van Wambeke, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.