Veteranclaims’s Blog

May 15, 2013

Single Judge Application; 38 C.F.R. § 4.26 (2012); Bilateral Factor

Excerpt from decision below:
“Bilateral Factor
In support of his first argument, Mr. McKelvey correctly notes that in association with his DDD, the Board awarded a 10% disability rating for incomplete paralysis of the left lower extremity for the entire appeal period, and a 10% disability rating for incomplete paralysis of the right lower
extremity from November 17, 2008, but that the Board failed to award an additional 10% of the combined rating for these two disabilities, as required by 38 C.F.R. § 4.26 (2012) (Bilateral Factor).
Applying the mechanical Bilateral Factor, the correct combined rating with the additional 10% is 20.9%, which is rounded to 21%. Id. Although the Secretary correctly notes that the failure to apply the Bilateral Factor has no material effect on the overall disability rating assigned by the Board, he fails to appreciate that it may affect future adjudications and application of combined ratings table under 38 C.F.R. § 4.25. Inasmuch as it is a mechanical application required by regulation, the Board decision will be modified to reflect a combined disability rating with a bilateral factor of 21% for the incomplete paralysis of the right and left lower extremities, effective November 17, 2008.
38 U.S.C. § 7252 (Court may, inter alia, modify Board decisions as appropriate); see also Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (Court has discretion to remand or act in the first instance on “legal arguments raised for the first time” in a claim properly before it).”
============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 11-2342
KYLE MCKELVEY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

KASOLD, Chief Judge: Veteran Kyle McKelvey appeals pro se that part of an April 1, 2011,
decision of the Board of Veterans’ Appeals (Board) that (1) denied a disability rating in excess of
40% for degenerative disk disease (DDD) of the lumbar spine, including neurological disabilities
associated with his low-back disability, (2) denied disability compensation for prostatitis because
it was not service connected, (3) referred his disability compensation claim for chronic pain
syndrome as secondary to his service-connected back disability to the regional office (RO) for
appropriate action, and (4) found that the issue of entitlement to a total disability rating based on
individual unemployability (TDIU) was not on appeal. In a confusing submission, Mr. McKelvey
argues that the Board erred by (1) failing to apply the bilateral factor to his lumbar spine disorder,
(2) denying his claim for benefits for prostatitis, (3) finding that the effective date for TDIU was not
on appeal, (4) not considering three years of his military service and thereby failing to consider the
“whole etiology” of his condition, (5) including another service member’s medical records in his file,
and (6) failing to include his 1989 Notice of Disagreement (NOD) in the record. The Secretary
disputes all Mr. McKelvey’s arguments except the first noted above, and as to that the Secretary
argues there is no prejudice. Single-judge disposition is appropriate. Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the decision of the Board will be in part
modified and in part affirmed.
Bilateral Factor
In support of his first argument, Mr. McKelvey correctly notes that in association with his DDD, the Board awarded a 10% disability rating for incomplete paralysis of the left lower extremity for the entire appeal period, and a 10% disability rating for incomplete paralysis of the right lower
extremity from November 17, 2008, but that the Board failed to award an additional 10% of the combined rating for these two disabilities, as required by 38 C.F.R. § 4.26 (2012) (Bilateral Factor).
Applying the mechanical Bilateral Factor, the correct combined rating with the additional 10% is 20.9%, which is rounded to 21%. Id. Although the Secretary correctly notes that the failure to apply the Bilateral Factor has no material effect on the overall disability rating assigned by the Board, he fails to appreciate that it may affect future adjudications and application of combined ratings table under 38 C.F.R. § 4.25. Inasmuch as it is a mechanical application required by regulation, the Board decision will be modified to reflect a combined disability rating with a bilateral factor of 21% for the incomplete paralysis of the right and left lower extremities, effective November 17, 2008.
38 U.S.C. § 7252 (Court may, inter alia, modify Board decisions as appropriate); see also Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (Court has discretion to remand or act in the first instance on “legal arguments raised for the first time” in a claim properly before it).

Prostatitis
In support of his second argument, Mr. McKelvey notes that his service records reflect that
he was treated for probable prostatitis, and therefore he reasons he should be service connected for
that disease. However, his claim for benefits for prostatitis was denied by the Board because he has
no current disability, as reflected in service records reflecting he was treated with antibotics and
postservice medical records reflecting that his prostrate was normal. Based on the record of
proceedings (ROP), the Board’s finding is plausible and not clearly erroneous. See Prickett v.
Nicholson, 20 Vet.App. 370 (2006) (factual determinations reviewed under the “clearly erroneous”
standard of review); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (‘”A finding is “clearly
erroneous” when although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.”‘ (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))); see also Hilkert v. West, 12 Vet.App. 145,
151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). Absent a current
disability, service connection may not be granted. See McClain v. Nicholson, 21 Vet.App. 319, 321
2

(2007) (“current disability” required for service connection includes disability at the time of filing
or during the pendency of a claim).
Also in support of his second argument, Mr. McKelvey appears to suggest that the Board
erred by not discussing whether an August 1989 denial of service connection for kidney problems
was the product of clear and unmistakable error (CUE). To the extent such an argument is being
made, Mr. McKelvey fails to demonstrate it was presented below or that the Board erred by not
addressing such an argument. See Jarrell v. Nicholson, 20 Vet.App. 326, 334 (2006) (en banc)
(assertion of CUE in an RO decision must first be presented to and decided by the RO before the
Board has jurisdiction to decide the matter). In sum, he fails to demonstrate error. Hilkert, supra.
Moreover, the Court lacks jurisdiction over any assertions of CUE raised by Mr. McKelvey for the
first time on appeal. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (“[E]ach ‘specific’
assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the
Veterans Court can exercise jurisdiction over it.”).
TDIU
With regard to the effective date of Mr. McKelvey’s TDIU award, he notes that his claim
stems from his 2009 testimony. However, the Board noted in its introduction that TDIU had been
awarded in a February 2010 rating decision and that Mr. McKelvey had not expressed any
disagreement with that decision such that it was not on appeal. Mr. McKelvey points to no record
evidence indicating that he appealed the February 2010 rating, and none is discerned from the ROP.
Hilkert, supra; see also Velez v. West, 11 Vet.App. 148, 157 (1998) (issue is not on appeal absent
an NOD’s “express disagreement with an RO’s decision on that issue or with an RO’s failure to
adjudicate that claim”).
Missing Service Records, Another Service Member’s Records, and Missing NOD
Mr. McKelvey notes record evidence indicating that he entered service in February 1983,
when he in fact entered service in February 1980, which he argues reflects Board’s failure to consider
his service from February 1980 until February 1983. However, the Board specifically found that Mr.
McKelvey “had active service from February 1980 to February 1989” (Record (R.) at 4), and
specifically noted service medical records from 1981 when addressing Mr. McKelvey’s claim for
3

benefits for prostatitis. In sum, Mr. McKelvey fails to demonstrate that the Board excluded a part
of his active service from consideration. Hilkert, supra.
Mr. McKelvey also correctly notes that his claims file contained other service members’s
medical records. However, he fails to note any reliance on these records by the Board in rendering
the decision on appeal, and none can be discerned from the ROP or the Board’s statement.
Succinctly stated, Mr. McKelvey fails to demonstrate how he was prejudiced by the inclusion of
another service member’s records in his claims file. See Shinseki v. Sanders, 556 U.S. 396, 410
(2009) (appellant bears burden of demonstrating prejudice on appeal).
With regard to a missing 1989 NOD, the Court’s docket reflects that Mr. McKelvey withdrew
a dispute he had regarding the record before the agency such that his assertion of a missing NOD is
no longer properly before the Court. Cf. U.S. VET. APP. R. 10(b) (Disputes). Nevertheless,
accepting his assertion that he filed an NOD in 1989, Mr. McKelvey fails to demonstrate the
relevance of such an NOD to the matter on appeal, which the record reflects arises from a claim for
increased benefits submitted in February 2003 for disability to his lumbar spine and a May 2005
claim for benefits for prostatitis. To the extent Mr. McKelvey’s submission might amount to a
contention that an earlier claim remains unadjudicated, he fails to demonstrate this is so, and no
unadjudicated claim can be discerned from the ROP. In sum, Mr. McKelvey fails to demonstrate
error or any prejudice arising from his asserted error. See Sanders and Hilkert, both supra; see also
DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006) (appellants should ask the Secretary to
adjudicate an unadjudicated claim in the first instance and seek relief from the Court only if the
Secretary refuses to process the request).
Conclusion
Upon consideration of the foregoing, that part of the April 1, 2011, Board decision that is on
appeal is MODIFIED as noted above, and the remainder of the decision is AFFIRMED.
DATED: May 14, 2013
4
Copies to:
Kyle R. McKelvey
VA General Counsel (027)
5

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: