Veteranclaims’s Blog

September 19, 2012

Single Judge Application, Mitchell v. Shinseki, 25 Vet.App. 32 (2011); 38 C.F.R. 4.40, 4.45; Pain Functional Loss

Excerpt from decision below:
“In addition, VA is required to account for loss of motion due to pain on
use when evaluating the functional loss of the musculoskeletal system and the joints. Mitchell v. Shinseki, 25 Vet.App. 32 (2011); DeLuca, supra; 38 C.F.R. §§ 4.40 (2012), 4.45 (2012).”

“The appellant argues, in part, that the 20% disability rating assigned by
the Board “does not
consider ‘function[al] loss’ due to pain on movement as required by 38 C.F.
R. [§] 4.40.” Appellant’s
Informal Br. at 1. As noted above, the Board stated that the General
Formula for Diseases and
Injuries of the Spine applies objective criteria that “factor in
functional loss due to pain, stiffness,
and radiation,” and that “[a]s a result, 38 C.F.R. §§ 4.40 and 4.45, as
interpreted by DeLuca [ ], are
not for application.” R. at 9 (citing only 38 C.F.R. § 4.71a). The
Secretary’s argument tracks the Board’s language. Sec’y Br. at 9.
The part of the rating schedule cited by the Board and the Secretary
begins with the statement, “With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease . . .” and is followed by the specific
criteria required for the various disability ratings that are available.
38 C.F.R. § 4.71a (2012)(governing diagnostic codes 5235-5243). However, the Court’s prior decisions do not support the Board’s and the Secretary’s position that §§ 4.40 and 4.45, as interpreted by DeLuca (and more recently by Mitchell), are never applicable in the context of these diagnostic codes. See Cullen v. Shinseki, 24 Vet.App. 74, 85 (2010) (“When rating disabilities of joints, including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue.” (citing DeLuca) (emphasis added))1; but see Johnston v. Brown, 10 Vet.App. 80, 84-85 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue, 5215).
Therefore, because the appellant was not receiving the maximum disability rating for limitation of motion under diagnostic

1. In Cullen, the Secretary conceded that remand was required based on theBoard’s inadequate statement of reasons or bases concerning the application of DeLuca to Mr. Cullen’s thoracic spine disability. Cullen, 24 Vet.App. at 84-85. The Court notes, for informational purposes only, that in an unrelated appeal adjudicated by a single judge, the Secretary conceded remand based on the Board’s inadequate discussion of §§ 4.40 and 4.45 in the context of diagnostic code 5242. Dickenson v. Shinseki, No. 10-690, 2011 WL 2694690, at *4 (Vet. App. July 13, 2011); see also Bohn v. Peake, No. 06-1333, 2008 WL 563390, at *2 (Vet. App. February 19, 2008) (noting that the Secretary conceded that DeLuca applied to diagnostic codes 5235-5243).
4

code 5242, the Board was obligated to discuss the issue of functional
loss and its failure to do so renders its statement of reasons or bases inadequate.

============================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1646
VERTIE H. BALLARD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.

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

MOORMAN, Judge: The appellant, Vertie H. Ballard, appeals pro se a January
28, 2011,
Board of Veterans’ Appeals (Board) decision that denied her claim of
entitlement to an increased
disabilityratingfor post-operative degenerative disc disease (DDD) of the
thoracolumbar spine with
lumbar radiculopathy (low back disorder), currently rated as 20% disabling.
Record (R.) at 3-16.
The Board also remanded the issue of entitlement to a total disability
rating based on individual
unemployability (TDIU), and that issue is not before the Court at this
time. See Breeden v. Principi,
17 Vet.App. 475 (2004). Ms. Ballard filed an informal brief and the
Secretary filed a brief. This
appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §
7252(a). A single judge may
conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Court will vacate
the Board’s decision.
I. BACKGROUND
Ms. Ballard served on active duty in the U.S. Army from August 1965 to
December 1966.
R. at 3. In November 2006, she submitted a claim for entitlement to
service connection for a low
back disorder. Secretary’s (Sec’y) Brief (Br.) at 2 (citing R. at 726,
which is not in the record of
proceedings before the Court). In January 2008, a VA regional office (RO)
granted entitlement to

service connection for a low back disorder and granted a 20% disability
rating, effective November
2006. R. at 221-23. In February 2008, Ms. Ballard requested an increased
disability rating.
In April 2008, VA provided a medical examination. R. at 182-91. Ms.
Ballard did not
report any flare-ups in pain, but she did state that her condition was
getting worse. R. at 183. She
noted problems with lifting, pushing, and bending at work prior to her
retirement and said that she
could only do chores for a few minutes at a time. Id. She also reported
that she had a history of
fatigue, decreased motion (due to pain with bending over), stiffness,
spasms, and pain. R. at 184.
On examination, the examiner noted that Ms. Ballard exhibited spasms and
tenderness. R. at 185.
The examiner found Ms. Ballard’s active range of motion to be from 0 to 35
degrees of flexion with
pain beginning at 35 degrees and no additional limitation of motion on
repetitive use and from 0 to
15 degrees of extension with pain beginning at 15 degrees and no
limitation of motion on repetitive
use. R. at 188. The examiner diagnosed her with “DDD/DJD [(degenerative
joint disease)] of
lumbar spine [with] radiculopathy of the bilateral lower extremities” and
stated, “Please refer to the
history for veteran’s description of effects on [her] occupation and daily
activities.” R. at 190.
In August 2008, the RO issued a rating decision that continued the 20%
disability rating and
denied TDIU. R. at 9. The RO also granted service connection for sensory
deficit of each lower
extremity for the neurological manifestations of the disorder and assigned
a separate 10% disability
rating for each. Id.
In the decision here on appeal, the Board found that Ms. Ballard’s low
back disability was
not manifested by ankylosis, incapacitating episodes, or range of motion
on forward flexion of 0 to
30 degrees or less. R. at 4, 8 (discussing the April 2008 VA examination
report results). In reaching
its decision, the Board noted that
the General [Rating] Formula [For Diseases and Injuries of the Spine]
applies strictly
objective criteria which specifically factor in functional loss due to
pain, stiffness,
and radiation. As a result, 38 C.F.R. §§ 4.40 and 4.45, as interpreted
by DeLuca v.
Brown, 8 Vet.App. 202 (1995), are not for application.
R. at 9 (citing 38 C.F.R. § 4.71a). Therefore, the Board concluded, Ms.
Ballard was not entitled to
a disability rating in excess of 20% under 38 C.F.R. § 4.71a, Diagnostic
Code 5242.
On appeal, Ms. Ballard argues that it is not clear how the Board decided
to rate her back
disability at a 20% disability rating. She argues that the April 2008 VA
examination report found
2

that her back condition had gotten worse and that she was forced to quit
her job because of it in
2005. She argues that the 20% rating does not contemplate her functional
loss or consider the side
effects of her medication or the fact that she is receiving Social
Security disability based on her VA
medical records.
II. ANALYSIS
Before deciding a claim, the Board is required to consider all relevant
evidence of record and
to consider and discuss in its decision all “potentially applicable”
provisions of law and regulation.
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(
a); Weaver v. Principi,
14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board is
required to provide 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. 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). To comply with this requirement, the Board
must analyze the
credibilityand 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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.
Pursuant to 38 C.F.R. § 4.71a, DC 5242, the following ratings are
warranted for a low back disorder such as the appellant’s in this case:
[F]orward flexion of the thoracolumbar spine 30 degrees or less; or,
favorable ankylosis of the entire thoracolumbar spine
. . . . . . . . . . . . . . . . . . . . . . . . . . 40[%]

Forward flexion of the thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees; . . . or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; . . . or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20[%]
3

In addition, VA is required to account for loss of motion due to pain on
use when evaluating the functional loss of the musculoskeletal system and the joints. Mitchell v. Shinseki, 25 Vet.App. 32 (2011); DeLuca, supra; 38 C.F.R. §§ 4.40 (2012), 4.45 (2012).

The appellant argues, in part, that the 20% disability rating assigned by
the Board “does not
consider ‘function[al] loss’ due to pain on movement as required by 38 C.F.
R. [§] 4.40.” Appellant’s
Informal Br. at 1. As noted above, the Board stated that the General
Formula for Diseases and
Injuries of the Spine applies objective criteria that “factor in
functional loss due to pain, stiffness,
and radiation,” and that “[a]s a result, 38 C.F.R. §§ 4.40 and 4.45, as
interpreted by DeLuca [ ], are
not for application.” R. at 9 (citing only 38 C.F.R. § 4.71a). The
Secretary’s argument tracks the
Board’s language. Sec’y Br. at 9.
The part of the rating schedule cited by the Board and the Secretary
begins with the
statement, “With or without symptoms such as pain (whether or not it
radiates), stiffness, or aching
in the area of the spine affected by residuals of injury or disease . . .”
and is followed by the specific
criteria required for the various disability ratings that are available.
38 C.F.R. § 4.71a (2012)
(governing diagnostic codes 5235-5243). However, the Court’s prior
decisions do not support the
Board’s and the Secretary’s position that §§ 4.40 and 4.45, as
interpreted by DeLuca (and more
recently by Mitchell), are never applicable in the context of these
diagnostic codes. See Cullen v.
Shinseki, 24 Vet.App. 74, 85 (2010) (“When rating disabilities of joints,
including the spine, the
Board must discuss any additional limitations a claimant experiences due
to pain, weakness, or
fatigue.” (citing DeLuca) (emphasis added))1
; but see Johnston v. Brown, 10 Vet.App. 80, 84-85
(1997) (explaining that remand was not required even though the Board did
not consider functional
loss due to pain because the appellant was already receiving the maximum
disability rating for
limitation of motion available under the diagnostic code at issue, 5215).
Therefore, because the
appellant was not receiving the maximum disability rating for limitation
of motion under diagnostic

In Cullen, the Secretary conceded that remand was required based on the
Board’s inadequate statement of
reasons or bases concerning the application of DeLuca to Mr. Cullen’s
thoracic spine disability. Cullen, 24 Vet.App.
at 84-85. The Court notes, for informational purposes only, that in an
unrelated appeal adjudicated by a single judge,
the Secretary conceded remand based on the Board’s inadequate discussion
of §§ 4.40 and 4.45 in the context of
diagnostic code 5242. Dickenson v. Shinseki, No. 10-690, 2011 WL 2694690,
at *4 (Vet. App. July 13, 2011); see also
Bohn v. Peake, No. 06-1333, 2008 WL 563390, at *2 (Vet. App. February 19,
2008) (noting that the Secretary conceded
that DeLuca applied to diagnostic codes 5235-5243).
1
4

code 5242, the Board was obligated to discuss the issue of functional
loss and its failure to do so renders its statement of reasons or bases inadequate.

The Court is required by statute to determine whether the appellant was
prejudiced by the
Board’s error. 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due
account of the rule of
prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 414 (2009). Here,
the Court notes that the
April 2008 VA examination report includes multiple statements regarding
different aspects of
functional loss. R. at 182-91 (e.g., problems lifting, pushing, and
bending; limited ability to do
chores; history of fatigue, decreased motion due to pain when bending over,
stiffness, spasms). On
the other hand, she reported no flare-ups in pain, and the examiner found
no additional limitation
of motion due to pain or on repetitive use. Id. The Court also notes that
there are many additional
medical records in the record before the Court, but that most appear to
date from approximately
August 2008 or earlier. Faced with these circumstances, and by the fact
that the Board did not
address this issue at all (and incorrectly stated it was not obligated to
do so), the Court cannot
conclude that the Board’s error was nonprejudicial. Therefore, the Court
will vacate the Board’s
decision and remand the matter for the Board to provide an adequate
statement of reasons or bases.
In light of the Court’s disposition, the Court need not address Ms.
Ballard’s other contentions.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“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.”). On remand, the appellant may present, and the Board must consider,any additional evidence and argument in support of the matters remanded. Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and
the briefs of the
parties, the Court will VACATE the Board’s January 28, 2011, decision and
REMAND the matter
for further adjudication consistent with this decision.
DATED: August 31, 2012
5

Copies to:
Vertie H. Ballard
VA General Counsel (027)
6

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