Veteranclaims’s Blog

April 20, 2012

Single Judge Application, Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011); 38 CFR 3.157(b)

Excerpt from decision below:
Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran’s intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr.
9

Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran’s disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R.
§ 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3072
ANTE HESTER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Ante Hester, who is self-represented,1
appeals a December 17, 2009, Board
of Veterans’ Appeals (Board) decision2
denying entitlement to an initial disability rating for a
cervical spine disability in excess of 20% from December 14, 1993, to
August 16, 2001, and in
excess of 60% from August 16, 2001, onward.3
Mr. Hester’s Notice of Appeal was timely and the
Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §
7252(a). The parties
neitherrequestedoralargumentnor identified issues that theybelieve
requireaprecedentialdecision
1
Mr. Hester’s principal brief was submitted through counsel, but the Court
issued an order granting his former
counsel’s motion to withdraw on September 22, 2011.
The Board’s decision was issued on December 17, 2009. Mr. Hester
subsequently filed a motion for
reconsideration, which was denied by the Board on September 8, 2010.
The Board also granted entitlement to VA benefits for a left elbow
disability. However, on appeal, Mr. Hester
presents no argument related to this aspect of the Board decision and the
Court therefore deems any such argument
abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (issues or
claims not argued on appeal are considered
abandoned). The Board also remanded the issue of entitlement to a total
disability rating based on individual
unemployability for further development. Because the Board has not yet
issued a final decision regarding this issue, the
Court does not have authority to consider it at this time. See 38 U.S.C. §
7252 (providing that the Court may only review
final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341,
1344 (Fed. Cir. 2000) (holding that a Board
remand does not constitute a final decision that may be appealed (citing
38 C.F.R. § 20.1100(b)(1999))).
3
2

of the Court. Because the Board provided an adequate statement of reasons
or bases for its decision,
the Court will affirm the September 2010 Board decision.
I. FACTS
Mr. Hester served on active duty with the U.S. Army from October 1993 to
December 1993.
He was discharged from active duty after a medical board determined, in
October 1993, that he did
not meet medical fitness standards for enlistment due to the residuals of
a preexisting left elbow
fracture”with intermittent symptoms ofnumbnessand tinglingin the ulnar
nervedistribution aswell
as the middle finger on the left hand” that occasionally spread to the
index finger. Record (R.) at
1735. The medical board noted that, a week prior to its determination, Mr.
Hester fell and
subsequently “developed some muscle spasm on the left side of his neck.” R.
at 1735.
In January 1994, shortly after his separation from active duty, Mr. Hester
filed a claim for
VA benefits for a neck injury resulting from the in-service fall. Mr.
Hester was provided a VA
muscles examination in April 1994. After a physical examination and the
interpretation of x-rays
taken at that time, the examiner diagnosed Mr. Hester with a left neck
muscle strain and ruled out
cervical radiculopathy.4
In June 1994, a VA regional office awarded Mr. Hester VA benefits for a
left neck muscle
strain, evaluated as 10% disabling, effective January 1994.
Mr. Hester filed a Notice of
Disagreement with this decision in November 1994 and, in December 1994,
the regional office
issued a Statement of the Case continuing the previous determination. In
January 1995, Mr. Hester
submitted a statement requesting a personal hearing and notification of
what further action would
be taken.
VA medical records from 1996 indicate that Mr. Hester sought treatment for
various
problems. A January 1996 VA treatment note reflects that Mr. Hester
reported intermittent
headaches with photophobia, the sensation of seeingblackdots, andpressure.
Theimpression atthat
time was probable vascular headaches. A March 1996 VA treatment note
reflects continued
complaints of headaches and blurry eyesight. A VA treatment note from
September 1996 indicates
Radiculopathy is “disease of the nerve roots, such as from inflamation or
impingement by a tumor or bony
spur.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1571 (32d ed. 2012) [
hereinafter “DORLAND’S”].
4
2

that Mr. Hester complained of neck pain with right arm numbness. The only
assessment was neck
pain. A VA neurological clinic note from October 1996 indicates that Mr.
Hester reported
headaches, tingling in both of his hands, and numbness in his right arm.
Mr. Hester told the
examiner that his headaches had plagued him since childhood and caused
some visual problems, but
no nausea or vomiting. The examiner’s impression was variable headaches
and numbness and
tingling on both hands. Peripheral neuropathy5
and cervical radiculopathy were ruled out.
Mr. Hesterwasaffordeda VA joints examination in February1997. The examiner
noted that
computedtomographyscansofMr.Hester’sheadperformedin
February1996werenegativeandthat
nerve conduction velocity studies performed on his left upper extremity in
March 1995 were
negative for radiculopathy, neuropathy, and carpal tunnel disease. After
physical examination, the
examiner diagnosed a chronic strain of the cervical spine.
In June 1997, the regional office issued a rating decision denying a
disability rating in excess
of 10% for a left neck muscle strain. Although not entirely clear, it
appears that the regional office
made this determination in the context of a new claim for an increased
disability rating. There is no
indication that Mr. Hester appealed this decision, meaning it became final.
A November 2000 VA physical therapy initial evaluation report reflects
that Mr. Hester
complained of increased pain in his spine described as “intermittent and
. . . localized to the left
upper trapezius muscle with some radiation into the upper cervical spine,
radiating into the occiput
as well as to the parietal lobe, experiencing the pain as headaches.” R.
at 1589. The assessment at
that time was “signs and symptoms of [a] left upper trapezius strain.” R.
at 1589.
A March 2001 VA x-ray report contained an impression of cervical
spondylosis. A
subsequent VA treatment note from May 2001 reflects that Mr. Hester
complained of recent loss of
balance and continuing headaches, neck pain, and neck spasms. The
impression was (1) cervical
spondylosis, (2) myofascial6
pain, and (3) headaches secondary to the cervical spondylosis and
myofascial pain, or of another etiology.
Peripheral neuropathy, or polyneuropathy, is “neuropathy of several
peripheral nerves simultaneously.”
DORLAND’S at 1491. Neuropathy is “a functional disturbance or pathological
change in the peripheral nervous system,
sometimes limited to noninflammatory lesions as opposed to those of
neuritis.” Id. at 1268.
The term “myofascial” means “pertaining to or involving the fascia
surrounding and associated with muscle
tissue.” DORLAND’S at 1223.
6
5
3

In August 2001, Mr. Hester submitted a statement “requesting a current
review of [his]
present condition as it relates to spondylosis, facial pain[,] and
migraine headaches.” R. at 1480.
The regional office treated this statement as a claim for an increased
disability rating for his service-
connected left neck muscle strain and initial claims for VA benefits for
cervical spondylosis and
myofascial pain with headaches, both secondary to his service-connected
left neck muscle strain.
Each of these claims was denied by the regional office in a June 2002
rating decision. The claims
for benefits for myofascial pain with headaches and cervical spondylosis
were both denied because
there was no evidence that they were related to the service-connected left
neck muscle strain or that
the conditions manifested in service. Mr. Hester filed a Notice of
Disagreement with this decision
in December 2002.
Mr. Hester was afforded VA spine examinations in September 2002 and July
2003, during
which range of motion testing was conducted and magnetic resonance imaging
and
electromyography testing results were reviewed. The September 2002
examiner diagnosed Mr.
Hester with “[c]ervical spondylosis with foraminal stenosis” and the July
2003 examiner assessed
him with “[i]ntervertebral dis[c] syndrome with radicular symptoms and
cervical spondylosis with
foraminal stenosis.” R. at 1347, 977. The July 2003 examiner further
opined that “it is at least as
likely as not that the continued progression of [Mr. Hester’s] symptoms
are related to the onset of
symptoms in service.” R. at 977.
Separate Statements of the Case were issued in October 2002 (continuing to
deny an
increased disability rating for a service-connected left neck muscle
strain) and September 2003
(continuing to deny, among other claims, Mr. Hester’s claim for VA
benefits for myofascial pain
with headaches). Also in September 2003, a decision review officer granted
Mr. Hester’s claim for
benefits for cervical spine spondylosis and assigned a 10% disability
rating, effective August 16,
2001. This award of benefits was made in addition to the existing award of
benefits for a left neck
muscle strain. Mr. Hester filed a Notice of Disagreement with this
decision later that month.
In November 2003, Mr. Hester submitted a statement indicating that he “[d]
isagree[ed] with
all of the [i]ssue[s] on appeal” and that he wanted “a decision on all [of
his] [i]ssue[s].” R. at 770,
771.
4

In March 2004, a decision review officer issued another decision. At the
outset, the decision
review officer noted that other issues remained pending following the
issuance of Statements of the
Case, including Mr. Hester’s claim for benefits for myofascial pain
syndrome with headaches. The
decision reviewofficerfoundthatMr.Hester’s service-
connectedleftneckmusclestrainandcervical
spondylosis should betreatedasonedisabilityandthat”[t]he evaluation of
cervical spondylosis with
chronic muscle strain of the left neck [was] increased to 60% disabling
effective August 16, 2001.”
R. at 587. The decision review officer rated this condition pursuant to
the rating criteria for
intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5293 (
2001).7
In establishing this
disability rating, the decision review officer relied on “[m]edical
evidence show[ing] significant
impairment in the neck and left arm with lesser symptoms in the right arm,”
and stated that the 60%
disability rating “include[d] all neurological symptoms in the arms.” R.
at 587.
In October 2007, Mr. Hester requested revision of the June 1994 regional
officedecision that
awarded benefits for a left neck muscle strain and assigned a 10%
disability rating, alleging that that
decision was tainted by clear and unmistakable error. After further
development, in July 2009 the
Board dismissed this motion as untimely because it found that Mr. Hester’s
January 1995 statement
regarding his neck claim was filed “within the one year appeals period
from the denial of the claims”
and was sufficient to demonstrate his intent to pursue an appeal of the
issues decided in the June
1994 regional office decision. R. at 166. Accordingly, the Board found
that the regional office
mistakenly “failed to certify the issues to the Board, . . . the Board
. . . never [took] any action,” and
the appeal therefore remained open. R. at 166. The Board remanded Mr.
Hester’s claim for benefits
for a left neck muscle strain for further development and readjudication.
In October 2009, the regional office issued a Supplemental Statement of
the Case continuing
to deny an initial disability rating for a service-connected left neck
muscle strain in excess of 10%
for the period between December 14, 1993, and August 16, 2001, whenMr.
Hester’s disabilityrating
was increased to 60%. The following month, Mr. Hester appealed to the
Board, arguing that,
because his appeal remained open, the effective date for the March 2004
award of a 60% disability
rating should have been effective from the date of his claim.
7
Becausethediagnosticcriteriachanged duringthependencyofMr. Hester’sappeal,
thedecisionreviewofficer
determined that the previous version would result in a higher disability
rating,and therefore applied it.
5

TheBoardissuedthe decision now on appeal in December 2009. The Board
framedtheissue
before it as Mr. Hester’s entitlement to an initial disability rating for
a “cervical spine disability” in
excess of 10% for the period from December 14, 1993 (the date Mr. Hester
filed a claim for a neck
injury), to August 16, 2001 (the effective date established by the March
2004 decision for a 60%
disability rating for cervical spondylosis with chronic muscle strain of
the left neck). R. at 94.
II. ANALYSIS
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its “findings and conclusions[] on all material issues of
fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate
review in this Court. See Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring
remand when it fails
to provide an adequate statement of its reasons or bases. See Gilbert, 1
Vet.App. at 57.
Mr. Hester argues that the Board’s reasons or bases for its decision were
inadequate in four
respects, all of which pertain to the disability rating established prior
to August 16, 2001.
A. Extraschedular Consideration
First, Mr. Hester contends that the Board failed to adequately explain its
determination that
referral for extraschedularconsideration was not warranted for the period
of time prior to August 16,
2001.
Consideration of whether a claimant is entitled to an extraschedular
rating is a three-step
inquiry. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff’d, 572 F.3d 1366 (
Fed. Cir. 2009). The
first step is to determine whether the “evidence before VA presents such
an exceptional disability
picture that the availableschedular evaluations for that service-connected
disabilityare inadequate.”
Id. If the adjudicator determines that this is so, the second step of the
inquiryrequires the adjudicator
to “determine whether the claimant’s exceptional disability picture
exhibits other related factors,”
6

such as marked interference with employment or frequent periods of
hospitalization. Id. at 116.
Finally, if the first two steps of the inquiry have been satisfied, the
third step requires the adjudicator
to refer the claim to the Under Secretary for Benefits or the Director of
the Compensation and
Pension Service for a determination of whether an extraschedular rating is
warranted. Id.
TheBoardconcludedthat,priorto August16,2001,Mr.Hester’s”service-
connectedcervical
spine disability manifest[ed] with pain and limitation of motion, with
associated neurological
symptoms of sensorydeficit.” R. at 112. However, the Board further
concluded that its examination
of Mr. Hester’s symptoms and the relevant schedular criteria reflected
that “these symptoms are
contemplated by the rating criteria.” R. at 112. The Board therefore
concluded that referral for
extraschedular consideration was not warranted.
Mr. Hester argues that, by discussing only his symptoms of pain,
limitation of motion, and
neurological sensory deficits, the Board ignored evidence suggesting that,
prior to August 2001, he
alsosufferedfromsymptoms suchasheadaches,blurredvision, lossofbalance,
andmyofascialpain.
He further asserts that there is evidence that these symptoms may be
attributable to his service-
connected neck condition, including the May 2001 VA treatment note that
included an assessment
of headaches possibly secondary to the cervical spondylosis or myofascial
pain. Accordingly, he
contends that the Board should have discussed whether these symptoms
warranted referral for
extraschedular consideration. The Court disagrees.
The record indicates that, since Mr. Hester filed a statement in August
2001 requesting
review of his condition as it relates to myofascial pain and migraine
headaches, the regional office
has recognized a separate claim for disability compensation benefits for a
condition characterized
by such symptoms, including as secondary to Mr. Hester’s service-connected
neck/cervical spine
condition. The record further indicates that the regional office denied
this claim in June 2002, that
Mr. Hester filed a Notice of Disagreement with this decision, and that the
regional office issued a
Statement of the Case continuing to deny this claim in September 2003. The
Court notes that, in
November 2003, Mr. Hester filed a statement expressing that he “[d]isagree[
d] with all of the
[i]ssue[s] on appeal” and requesting “a decision on all [his] [i]ssue[s].”
R. at 770, 771.
In January 2012, the Court issued an order directing “the Secretary to
supplement the record
of proceedings with all documents pertaining to VA’s adjudication of the
claim for benefits for
7

myofascial pain syndrome with headaches” in an effort to better assess
the status of this claim.
Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Jan. 20, 2012, order).8
Although the Secretaryfiled
a supplemental record of proceedings in February 2012, the evidence
contained in this supplement
is either duplicative of that already contained in the original record of
proceedings or simply does
not relate to Mr. Hester’s claim for benefits for myofascial pain with
headaches. The Court is
therefore left to assume that VA has taken no further adjudicatory action
on this claim since the
September 2003 Statement of the Case. The Court is troubled by this state
of affairs, given Mr.
Hester’s November2003statementthatappearsto request appellatereview of all
issues thenpending
in appellate status, which would presumablyinclude the denial of his claim
for myofascial pain with
headaches. Nevertheless, because the issue of the denial of benefits on
that claim is not currently
before the Court, the Court makes no finding at this time regarding
whether the November 2003
statement constituted a Substantive Appeal, since the Court would lack
jurisdiction to do so.
Regardless, it is apparent from the record that VA has determined that Mr.
Hester’s
myofascial pain, headaches,and attendant symptoms are attributable to a
disabilityseparate from his
service-connected cervical spine disability, and that this disability is
not secondary to the cervical
spine disability or otherwise related to his service. This being so, these
symptoms are not pertinent
to the service-connected cervical spine disability that is at the heart of
this appeal and the Board was
therefore not required to discuss them when conducting an extraschedular
analysis. See 38 C.F.R.
§ 3.321 (2011) (expresslystating that extraschedular evaluation should
compensate for “the average
earning capacity impairment due exclusively to the service-connected
disability or disabilities”
(emphasis added)); see also 38 U.S.C. § 7104(d)(1) (providing that the
Board must provide a
statement of its reasons or bases for its findings and conclusions only ”
on . . . material issues of fact
and law presented on the record” (emphasis added)); Caluza, 7 Vet.App. at
506 (stating that the
Board’s obligation to explain its determinations requires it to explain
its rejection of any material
evidence that is favorable to the claimant). In reaching this conclusion,
the Court emphasizes that
The Court also offered Mr. Hester an opportunity to supplement the record
with any documents he felt were
relevant but had not been included in the supplement filed by the
Secretary, see Hester v. Shinseki, U.S. Vet. App. No.
10-3072 (Mar. 15, 2012, order), but, on March 20, 2012, he filed a
response indicating that he had nothing more to add.
8
8

the propriety of the regional office’s determination that Mr. Hester’s
disorder characterized as
myofascial pain with headaches is not service connected is simply not
before the Court at this time.
In light of this discussion, the Court concludes that Mr. Hester has not
carried his burden of
demonstrating error in the Board decision now on appeal. See Hilkert v.
West, 12 Vet.App. 145, 151
(1999) (en banc) (holding that appellant has the burden of demonstrating
error), aff’d per curiam,
232 F.3d 908 (Fed. Cir. 2000) (table).
B. Claims Reasonably Raised by the Record
Mr. Hesternext argues that the Board’s statement of reasons or bases was
inadequate because
“the decision on appeal fails to explain why the evidence of headaches,
blurred vision, and loss of
balance—and evidence that these problems are associated with service-
connected cervical spine
disability—were not additional claims reasonably raised by the record.”
Appellant’s Br. at 15. This
argument is not compelling.
First, and as noted above, the record reflects that VA has recognized and
adjudicated a claim
for myofascial pain syndrome with headaches since Mr. Hester filed his
August 2001 statement
requesting a review of his condition as manifested by facial pain and
headaches. Because VA has
recognized and adjudicated such a claim, Mr. Hester’s argument that the
Board should have
discussed the possibility that evidence of headaches raised a separate
claim is without merit.
To the extent that Mr. Hester’s argument is that VA should have recognized
the possibility
of a claim for a separate condition manifested by blurred vision and loss
of balance, in support of
this argument, he cites only to various medical records documenting these
symptoms. However, it is now well established that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and that such intent must be expressed in
writing. See Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (explaining that “the essential requirements of any claim, whether formal or informal,” are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing”); see also 38 C.F.R. § 3.1(p) (2011) (defining a “claim” as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement”). Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran’s intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr.
9

Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran’s disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R.
§ 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)).

Here, Mr. Hester has not cited any evidence reflecting his written intent to seek benefits for blurred vision or loss of balance. Instead, he has cited only medical records documenting these symptoms. Because these records alone could not, as a matter of law, have
raised initial claims for
VA benefits for conditions characterized bysuch symptoms, the Board was
not obligated to consider
and discuss this possibility. See Criswell, 20 Vet.App. at 503-04; see
also 38 U.S.C. § 7104(d)(1)
(requiring the Board to consider only the “material issues of . . . law
presented on the record”).
C. Evidence of Right Upper Extremity Neurological Symptoms
Next, Mr. Hester argues that the Board ignored evidence that, prior to
August 2001, he
exhibited neurological symptoms in not just his left upper extremity, but
also his right upper
extremity. He contends that the Board was required to consider evidence of
neurological symptoms
in his right upper extremity because it is favorable insomuch as it may
have resulted in a higher
schedular rating.
The Board considered several diagnostic codes under which Mr. Hester’s
condition could be
rated for the period prior to August 16, 2001, including the rating
criteria for intervertebral disc
syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). At that time,
Diagnostic Code 5243
provided for: a 60% disability rating for pronounced intervertebral disc
syndrome “with persistent
symptoms compatible with sciatic neuropathy with characteristic pain and
demonstrable muscle
spasm, absent ankle jerk, or other neurological findings appropriate to [
the] site of [the] diseased
disc, [with] little intermittent relief”; a 40% disability rating for
severe symptoms characterized by
“recurring attacks[] with intermittent relief”; a 20% disability rating
for moderate symptoms
characterized by “recurring attacks”; and a 10% disability rating for mild
symptoms. 38 C.F.R.
§ 4.71a, Diagnostic Code 5243 (2001).
10

The Board concluded that, even if it were to evaluate Mr. Hester’s
condition pursuant to this
diagnostic code, the evidence of record prior to August 16, 2001, did not
demonstrate that his
symptoms were any more than moderate. Mr. Hester argues that, in reaching
this conclusion, the
Board considered only evidence of neurological symptoms such as tingling
and numbness in his left
hand and arm and ignored evidence suggesting that he also experienced such
symptoms in his right
hand and arm.
However, Mr. Hester ignores that the Board expresslyconsidered the results
of reflex testing
conductedbyvariousmedicalexaminersbetweenApril1994andAugust 14,2001,
thatcumulatively
suggested that his “reflexes were 2+ and symmetrical, bilaterally, at all
times.” R. at 112 (emphasis
added). Accordingly, although the Board did not explicitly state that the
record contained some
evidence that Mr. Hester experienced numbness in his right upper extremity,
it did base its
determination on reflex testing that addressed the neurological impact of
Mr. Hester’s condition on
both of his upper extremities. Under these circumstances, the Court
concludes that the Board
adequately discussed the evidence of record pertaining to neurological
symptoms Mr. Hester
experiences in his bilateral upper extremities.
D. Effective Dates
Finally, Mr. Hester argues that the Board failed to adequately discuss the
ramifications of its
July 2009 determination that his initial claim for benefits for a neck
muscle strain remained in
appellate status.
More specifically, he contends that the Board failed to discuss how this
determination impacted the establishment of an effectivedate for the
increased 60% disabilityrating
awarded by a decision review officer in March 2004. It appears that his
contention is that, because
the decision review officer established an effective date for this
increased disability rating based on
the mistaken presumption that Mr. Hester’s August 2001 statement was a new
claim for an increased
disability rating, he is entitled to an effective date prior to August
2001 for the increased disability
rating as a result of the Board’s July 2009 decision. This argument is
unpersuasive.
The Board adequately explained its determination that Mr. Hester was not
entitled to a
disability rating in excess of 20% prior to August 16, 2001. Specifically,
the Board stated that,
because Mr. Hester’s appeal involved the appropriate initial disability
rating, it was giving
“consideration . . . to ‘staged ratings’ (different percentage ratings for
different periods of time since
11

the effective date of service connection).” R. at 112 (citing Fenderson v.
West, 12 Vet.App. 119
(1999). The Board further found that “the weight of the credible evidence
demonstrate[d] that [Mr.
Hester’s] cervical spine disability . . . warranted a 20[%] rating but no
more for the period prior to
August 16, 2001, and no more than 60[%] for the initial rating period
since August 16, 2001.” R.
at 112. This finding was based on a lengthy analysis of the medical
evidence of record prior to
August 16, 2001, and Mr. Hester does not contend that the Board clearly
erred in assessing this
evidence and assigning no more than a 20% disability rating for this
period under the schedular
criteria. Accordingly, the Court concludes that the Board
adequatelyexplained its decision to assign
staged ratings. Further, this explanation clearly indicated that the Board
was aware of the import of
its July 2009 finding that Mr. Hester’s claim remained in appellate status.
III. CONCLUSION
Upon consideration of the foregoing, the September 8, 2010, Board decision is AFFIRMED.
DATED: April 17, 2012
Copies to:
Ante Hester
VA General Counsel (027)
12

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