Veteranclaims’s Blog

May 2, 2011

Single Judge Application, 38 C.F.R. § 4.55(a), Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991)

38 C.F.R. § 4.55(a) (2008), that a “muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.” Id.

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The Board found that because the appellant’s right knee flexion is not limited to 60 degrees and is thus not entitled to a noncompensable ratingunder DC 5260, the appellant “even when considering the effects of pain and functional loss after repetitive use . . . would not be entitled to a compensable evaluation for his right knee disability.” Id. The appellant and the Secretary both dispute this finding based on this Court’s holding in Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991). In Lichtenfels, the Court stated: Read together, DC 5003, and [38 C.F.R.] § 4.59 thus state that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is
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established by x-ray, is deemed to be limited motion and entitled to a minimum 10[% disability] rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. 1 Vet.App. at 488.

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The Board did not explain what functions are affected by the muscle injury for which the appellant has already received a disability rating, nor did it explain what functions are affected by the appellant’s peripheral neuropathy. Without more explanation, the Court cannot determine the basis for the Board’s conclusory statement that the evidence does not show that a different function is affected by the appellant’s numbness. The appellant also calls into question the Board’s application of the term “numbness.” Appellant’s Br. at 12. Applying DC 8521, the Board stated that it “associates the reports of numbness with mild incomplete paralysis of the nerve, as opposed to moderate incomplete paralysis.” R. at 13. Thus, the Board found, no more than a 10% disability
rating is warranted for the appellant’s peripheral neuropathy. DC 8521, as well as DCs 8522, 8523, 8524, and 8525,
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contemplates disability ratings for complete nerve paralysis and mild, moderate, and severe incomplete paralysis. A notation at the beginning of the DC section on peripheral nerves indicates that “[w]hen involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” The Board does not explain how numbness relates to this notation, or why the medical and lay evidence of record warrants a disability rating for mild rather than moderate incomplete paralysis. Finally, the Court notes that before its analysis of the appellant’s peripheral neuropathy, the Board did report the findings of the June 2006 VA examiner in detail.
However, the Board did not relate those findings to the DC provisions in its analysis. The Court has “long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007). Therefore, for the above stated reasons, the Court finds the Board’s statement of reasons or bases concerning the appellant’s peripheral neuropathy to be inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.
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The Court has “long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1968
IRWIN M. NABLE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

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

SCHOELEN, Judge: The appellant, Irwin M. Nable, appeals through counsel a January 28, 2009, Board of Veterans’ Appeals (Board) decision that denied him entitlement to an increased disability rating for residuals of a shell fragment wound to the right leg, muscle group XII, with an old healed fracture of the middle third shaft of the tibia, numerous
retained particles, arthritis of the
right knee and ankle, peripheral neuropathy, and multiple scars, currently evaluated at 30% disabling. Record of Proceedings (R.) at 3-22. This appeal is timely, and the Court
has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.

I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Army from July 1943 until May 1945. R. at 403, 697. The appellant was injured by an exploding hand grenade in combat on June 15, 1944. R. at 513. In a January 1948 rating decision, the appellant was granted a 10% disability rating for residuals of shell fragment wounds suffered in combat. R. at 403. The
wound resulted in multiple scars on his right leg, a fracture of the tibia, and “numerous small retained particles” in the soft
tissues of his muscle group XII muscles. Id. A January 1949 medical report indicates that the appellant’s fracture had healed with a satisfactory general bony alignment, and that innumerable small metallic foreign bodies remained scattered through the soft tissues of his right thigh and lower
leg. R. at 389. In April 2006, Dr. Jorge Acevedo diagnosed the appellant with arthritis in his right knee related to his in-service injury. R. at 58. In June 2006, the appellant was provided a VA examination. R. at 196-213. The examiner found no injury in muscle groups X and XI, but identified the muscle group XII injury as impacting the tibialis anterior
muscle. R. at 203-04. The appellant was found to have a range of motion in his right knee of zero to 130 degrees. R. at 200. The appellant was diagnosed with degenerative arthritis of the right knee. R. at 202. The examiner also identified numbness in the area of scars on the medial anterior
surface of his right lower leg. R. at 205-06. The appellant was diagnosed with peripheral neuropathy secondary to his shell
fragment wound affecting the external peroneal nerve. R. at 206-07. A September 2007 medical report indicates that the appellant has “innumerable shrapnel fragments throughout the soft tissues” of his right leg and has experienced progressive degenerative changes with an “almost complete obliteration of the medial aspect of the knee joint” and soft tissue
swelling. R. at 55-56. The appellant was provided a hearing before the Board on September 8, 2008. R. at 30-52. During the hearing, the appellant’s wife stated that he often has trouble standing up, and that once he does, his leg is numb, and he must wait up to 20 minutes before he can try to
walk. R. at 37. The appellant stated that he has daily numbness in his leg. R. at 43. He also stated that he suffers from swelling, arthritis, and difficulty walking. R. at 43-44.
The Board, in its January28, 2009, decision here on appeal, denied the appellant entitlement to an increased disability rating for residuals of a shell fragment wound in his right leg. The Board noted that the appellant’s disability is currently rated under 38 C.F.R. § 4.73, Diagnostic Code (DC)
5312 (2008), “which is in the section for rating muscle injuries.” R. at 11. The appellant, the Board stated, is “already receiving the maximum schedular disability rating allowed under DC 5312.” R.
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at 12. The Board, however, noted that, in evaluating muscle group injuries, it also has the responsibility to “determine whether there are any residuals that require separate ratings.” R. at 11-12. In this case, the Board determined that the criteria for rating scars should be considered. R. at 12. The Board also decided it would consider peripheral neuropathy, but found, citing 38 C.F.R. § 4.55(a) (2008), that a “muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.” Id.
The Board determined that a separate rating is not warranted for either peripheral neuropathy or scars. R. at 13. Regarding the appellant’s peripheral neuropathy, the Board identified damage to the external peroneal nerve, and found that a 10% disability rating could be awarded for peripheral neuropathy “based on mild incomplete paralysis of the external popliteal nerve (common peroneal).” Id. However, the Board determined that “[t]he medical evidence does not show that different functioning is affected bythe [appellant’s] complaints of numbness,” and thus a separate rating is not warranted. Id.
The Board next considered “whether the various disabilities now assigned a single rating under DC 5312 would warrant a higher rating if evaluated separately and then combined.” Id. In analyzing the appellant’s traumatic arthritis, the Board noted that the appellant’s right leg flexion was to 130 degrees. R. at 19. The Board stated: Given that arthritis of the right knee is shown, a compensable evaluation would be
warranted if the limitation of motion is noncompensable under the appropriate Diagnostic Code. . . . However, a noncompensable rating is not warranted
for limitation of flexion of the leg unless flexion is limited to 60 degrees . . . . Since limitation of right leg flexion to 60 degrees or less is not shown by the medical evidence of record, even when considering the effects of pain . . . and
functional loss after repetitive use, the [appellant] would not be entitled to a compensable evaluation for his right knee disability. Id.
The Board concluded that “the only disability contemplated in the currently assigned 30% disability rating for muscle injury that would by itself warrant a compensable evaluat is peripheral neuropathy.” R. at 20. The Board also noted that, since both the appellant’s right knee and ankle have arthritis, but “essentially no limitation of motion,” a 10% evaluation “could be awarded for the combination of joints with arthritis under DC 5003.” Id. Since a combined disability rating for
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peripheral neuropathy and arthritis would not be greater than 30%, “a higher schedular evaluation would not be warranted when considering the [appellant’s] disabilities separately.” Id.

B. Arguments on Appeal
The appellant raises three arguments on appeal. The appellant first argues that the June 2006 VA examination report is inadequate, and that a new examination should be
ordered. Appellant’s Brief (Br.) at 8-10. The appellant next argues that the Board’s denial of a separate compensable
rating for his arthritis was accompanied by an inadequate statement of reasons or bases and demonstrated a misapplication of the law. Id. at 11-12. Finally, the appellant asserts that the Board failed to provide an adequate statement of reasons or bases for its denial of a separate compensable rating for peripheral neuropathy and did not adequately explain the choice of DC it applied to that
injury. Id. at 12-13.
The Secretary concedes that remand is warranted because the Board failed to “provide an adequate statement of reasons or bases for its determination that [a]ppellant was not entitled to a separate compensable rating for arthritis of the right knee.” Secretary’s Br. at 3-5. Based on his
concession, the Secretary agues that the Court need not address the appellant’s other arguments. Id. at 5. However, responding to the appellant’s argument concerning the June
2006 VA examination, the Secretary asserts that the record supports the Board’s finding that the examination was adequate. Id. at 7-8. Finally, the Secretary argues that the Board adequately supported its decision regarding a separate disability rating for peripheral neuropathy and the appellant
failed to adequately demonstrate error. Id. at 9-10. In his reply, the appellant states that he “herebyamends his opening brief to request reversal” on the arthritis issue to which the Secretary conceded error. Reply at 2.
On July 11, 2010, the
Secretary moved to strike the appellant’s reply brief because the appellant used it to raise a new argument, and the appellant opposed the motion on July 23, 2010. This
Court has consistently held that it will not consider arguments raised for the first time in a reply brief. See Henderson v. West, 12 Vet.App. 11, 18-19 (1998) (holding that an argument raised for the first time in the appellant’s reply brief is considered abandoned); Tubianosa v. Derwinski, 3 Vet.App.
181, 184 (1992) (holding that a party “should have developed and presented all of his arguments in his initial pleading”). The
Court, therefore, will grant the Secretary’s motion in part, and strike the portion of the appellant’s
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reply brief arguing that reversal is warranted. The Court will consider arguments in the reply brief concerning issues he adequately raised in his initial brief.

II. ANALYSIS
A. Arthritis
When deciding a matter, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57(1990). Tocomplywith this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide
the reasons for its rejection of anymaterial evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57.
The appellant argues and the Secretary concedes that the Board’s denial of a separate compensable rating for arthritis of the appellant’s right knee was not supported by an adequate statement of reasons or bases. Appellant’s Br. at 11-12; Secretary’s Br. at 2-5. The Board noted that the appellant’s right leg flexion was measured at 130 degrees. R. at 19.
However, as the Board reported, DC 5260 allows for a noncompensable disability rating for limitation of leg flexion only when flexion is measured at 60 degrees, and allows a compensable disability rating only when flexion is limited to 45 degrees or less. Id. The Board further stated that under the criteria for degenerative arthritis, found in DC 5003, a disability rating of 10% is allowed when a limitation of
motion is found to be noncompensable under the appropriate DC. The Board found that because the appellant’s right knee flexion is not limited to 60 degrees and is thus not entitled to a noncompensable ratingunder DC 5260, the appellant “even when considering the effects of pain and functional loss after repetitive use . . . would not be entitled to a compensable evaluation for his right knee disability.” Id. The appellant and the Secretary both dispute this finding based on this Court’s holding in Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991). In Lichtenfels, the Court stated: Read together, DC 5003, and [38 C.F.R.] § 4.59 thus state that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is
5

established by x-ray, is deemed to be limited motion and entitled to a minimum 10[% disability] rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. 1 Vet.App. at 488. The Board has already found that the appellant has arthritis of the right knee
confirmed by x-ray and that it, along with the residuals of his wound, are “primarily manifested by[] pain, stiffness, swelling.” R. at 4, 13, 18. The Board also noted that the appellant reported persistent pain and that VA treatment records indicate right knee pain. R. at 15; see also R. at 55. Treatment notes from Dr. Acevedo support the Board’s finding that the appellant has arthritis and pain associated with his arthritis in his right knee. R. at 57-58. The June 2006 VA examiner diagnosed the appellant with degenerative arthritis of the right knee with effects on usual daily activities. R.
at 202. The examiner found that the appellant is experiencing right knee pain. R. at 196, 200.
Therefore, based on the record, the Court agrees with the Secretary and the appellant that the Board should have applied the Court’s finding in Lichtenfels in making its
determination. Its failure to do so renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.

B. Peripheral Neuropathy
The Board stated that the appellant reported to the June 2006 VA examiner that he had numbness near the scars in his right lower leg and that the examiner diagnosed the appellant with
peripheral neuropathy secondary to his shell fragment wounds affecting the external peroneal nerve. R. at 13; see also 205-07. The Board noted, based on 38 C.F.R. § 4.124a, DC 8521 (2008), that a 10% disability rating “could be awarded for peripheral neuropathy in the right lower extremity based
on mild incomplete paralysis of the external popliteal nerve (common peroneal).” Id. The appellant disputes the Board’s use of DC 8521 to find that his peripheral neuropathy
warrants a 10% disability rating. Appellant’s Br. at 12-13. The appellant notes that the June 2006 VA examiner diagnosed the appellant with damage to his external peroneal nerve. Id. at 12. DCs 8521, 8522, and 8523 apply to the external popliteal (common peroneal), musculocutaneous
(superficial peroneal), and anterior tibial (deep peroneal) nerves respectively, but none identify the external peroneal nerve. The appellant, citing this Court’s precedent in
Colvin v. Derwinski, 1 Vet.App. 171 (1992), argues that the Board’s decision to apply DC 8521 required the Board to make a medical determination that the external popliteal nerve(common peroneal) is equivalent to external
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peroneal nerve, and that its decision is not based on independent medical evidence. Id. at 12-13.
The Court gives great deference to the Board’s expertise in selecting appropriate DCs, and thus will set aside such decisions only if they are “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'” Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (quoting 38 U.S.C. § 7261(a)(3)(A)). However, this deference does not
abrogate that Board’s requirement to provide an adequate statement of reasons or bases for its decisions. Under Colvin, the Board may consider only independent medical evidence and may not substitute its own medical opinion for a lack of such evidence. 1 Vet.App. at 175. The Board does not
explain the basis for its decision to apply DC 8521 rather that DC 8522 or 8523, or for that matter DCs 8524 or 8525, which apply to the internal popliteal nerve (tibial) and posterior tibial nerve respectively.
The Board, citing 38 C.F.R. § 4.55(a) (2008), also found that the appellant’s existing disability rating for his muscle injury “will not be combined with a peripheral nerve paralysis rating
of the same body part, unless the injuries affect entirely different functions.” Id. The Board then held that “[t]he medical evidence does not show that different function is affected by the [appellant’s] complaints of numbness,” and thus declined to combine his peripheral neuropathy and muscle disability ratings. Id.
The appellant argues that the Board failed to provide an adequate statement of reasons or bases for its assertion that the medical evidence does not show that different function is affected by his complaints of numbness. Appellant’s Br. at 12. The Court agrees. The Board did not explain what functions are affected by the muscle injury for which the appellant
has already received a disability rating, nor did it explain what functions are affected by the appellant’s peripheral neuropathy. Without more explanation, the Court cannot determine the basis for the Board’s conclusory statement that the evidence does not show that a different function is affected by the appellant’s numbness.
The appellant also calls into question the Board’s application of the term “numbness.” Appellant’s Br. at 12. Applying DC 8521, the Board stated that it “associates the reports of
numbness with mild incomplete paralysis of the nerve, as opposed to moderate incomplete paralysis.” R. at 13. Thus, the Board found, no more than a 10% disability rating is warranted for the appellant’s peripheral neuropathy. DC 8521, as well as DCs 8522, 8523, 8524, and 8525,
7

contemplates disability ratings for complete nerve paralysis and mild, moderate, and severe incomplete paralysis. A notation at the beginning of the DC section on peripheral nerves indicates that “[w]hen involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” The Board does not explain how numbness relates to this notation, or why the medical and lay evidence of record warrants a disability rating for mild rather than moderate incomplete paralysis.
Finally, the Court notes that before its analysis of the appellant’s peripheral neuropathy, the Board did report the findings of the June 2006 VA examiner in detail. However, the Board did not relate those findings to the DC provisions in its analysis. The Court has “long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007). Therefore, for the above stated reasons, the Court finds the Board’s statement of reasons or bases concerning the
appellant’s peripheral neuropathy to be inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.

C. Other Arguments
Given this disposition, the Court will not, at this time, address the other arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him”). On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that “[a] remand is meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded by the Court).
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III. CONCLUSION
After consideration of the appellant’s and Secretary’s pleadings, and a review of the record, the Board’s January 28, 2009, decision is VACATED and the matter REMANDED to the Board for further proceedings consistent with this decision.

DATED: April 28, 2011
Copies to:
David T. Landers, Esq.
VA General Counsel (027)
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