Veteranclaims’s Blog

May 13, 2014

Single Judge Application; El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013); PTSD Aggravated Alcoholism

Excerpt from decision below:

“Here, the November 2010 VA examiner acknowledged that Ms. Belt-Dixon reported that her mid-to-lower back pain was “associated with neurological symptoms” in both her upper and lower extremities; however, the examiner provided an opinion only as to whether the service-connected back disability caused those symptoms and did not opine as to whether they were aggravated by the back disability. Id. The Secretary argues that it was not error for the Board to rely on this conclusion to deny a separate evaluation for neurologic impairment because the November 2010 medical examiner was not obligated to opine as to aggravation. Secretary’s Br. at 8-10. However, this Court has held that the Board may not deny benefits based on a lack of evidence that a service-connected condition aggravated a non-service-connected condition where the medical opinion on which the Board relies only addresses causation and not aggravation. El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013) (remand required for adequate medical examination as to whether service-connected post-traumatic stress disorder aggravated deceased veteran’s alcoholism).”

====================

“The Secretary also argues that in El-Amin, unlike here, aggravation was part of the claimant’s theory. Secretary’s Br. at 9. However, the record evidence here fairly raised the inference that the low back disability was in some way connected to neurologic impairment, either through causation or aggravation. See R. at 294-95 (veteran complained of increased back pain with numbness and tingling in the right lower extremity in January 2008); R. at 179 (veteran reported constant radiation of low back pain into both legs in May 2009). As a layperson, Ms. Belt-Dixon was not required to use the term “aggravation” in her filings to place the issue before the Board. See Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (Board required to consider claims fairly encompassed by a lay veteran’s filings, particularly where “[t]he medical evidence submitted in support of the claim clearly raised the issue” of related diagnoses); Ingram v. Nicholson, 21 Vet.App. 232, 256 (2007) (“a sympathetic reading of the appellant’s pleadings cannot be based on a standard that requires legal sophistication beyond that which can be expected of a lay claimant”); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (“VA has a duty to ‘fully and sympathetically develop a veteran’s claim to its optimum'” (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001))). This is particularly true where § 4.71a specifically instructs the Board to evaluate “any associated objective neurologic abnormalities” (emphasis added). In any event, the Board’s remand order was not limited to causation but rather instructed that the VA examiner opine as to “any neurological manifestations” of the back strain, note the “current level of the Veteran’s neurological disability,” and indicate whether a neurologic disability was “associated with” the back strain. R. at 62 (emphasis added). The examiner’s conclusion, which opined only that the back strain did not “cause” neurologic impairment, fell short of supplying the requested opinion. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (Board remand confers a right on claimant to compliance with the remand order). The Board then used the examiner’s opinion as to causation to conclude that neurologic symptoms had not been “objectively linked” to the back strain so as to justify a separate evaluation under § 4.71a. R. at 10.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0469
DENISE L. BELT-DIXON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran Denise L. Belt-Dixon appeals through counsel a January 14, 2013, Board of Veterans’ Appeals (Board) decision assigning a 20% evaluation for a low back
disability but denying entitlement to a separate evaluation for neurologic impairment associated with the back disability. Record (R.) at 3-14. 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 in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-
26 (1990). For the reasons that follow, the Court will set aside the January 2013 Board decision and remand the matter for further development and readjudication consistent with this decision.

I. FACTS
Ms. Belt-Dixon served on active duty in the U.S. Army from January 2002 to
March 2006.
R. at 492. In March 2006, she filed a claim for, inter alia, middle and
lower back pain. R. at 677.
In July 2006, the VA regional office (RO) granted service connection for a
thoracolumbar1
strain
Thoracolumbar means pertaining to the thoracic (middle) and lumbar (lower)
parts of the spine. DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 1920 (32d ed. 2012) [hereinafter DORLAND’S].
1

with an initial evaluation of 10% under 38 C.F.R. § 4.71a, Diagnostic
Code (DC) 5237 (lumbosacral
or cervical strain). R. at 622. In December 2006, she filed a Notice of
Disagreement (NOD) (R. at
618-20), and in June 2007 the RO issued a Statement of the Case (SOC)
continuing the initial 10%
evaluation (R. at 570-99). Later in June 2007, the veteran perfected her
appeal to the Board. R. at
567-68.
In November 2007, Ms. Belt-Dixon reported to her VA treating physician
that she
experienced numbness and tingling in her legs if she knelt for too long (R.
at 166), and in December
2007, she reported pain and numbness in her feet and legs (R. at 164-66).
In a September 2008
Board hearing, she testified that she lost feeling in her knees while
kneeling and experienced pain
when feeling returned. R. at 263. She also testified that her back pain
had worsened since her last
VA medical examination, and she submitted a January 2008 medical record
showing she reported
increased back pain with numbness and tingling in the right lower
extremity. R. at 261, 294-95. In
February2009,theBoardremandedtheclaimforaVA medical examination to
determinethenature,
extent, and severity of the lower back disability. R. at 245-51.
AtaMay2009VAmedicalexamination,theexaminernotedthatMs. Belt-Dixonhadmissed
20 weeks of work as a mail carrier the previous year due in part to low
back pain and knee pain. R.
at 178. During the examination, Ms. Belt-Dixon reported constant radiation
of low back pain into
both legs. R. at 179. She reported that sitting while driving aggravated
her right leg pain and that
after one hour of driving she had to get out and stretch her lower back.
Id.
In November2010, theBoardremandedforaVAmedical examination to determine
whether
Ms. Belt-Dixon had “any neurological manifestations” of her service-
connected thoracolumbar
strain. R. at 62. The Board instructed that, if the examiner found a
neurologic disability, he or she
should note the current level of the disability and indicate whether it
was “associated with” the back
strain. R. at 62-63.
At the resulting November 2010 VA medical examination, Ms. Belt-Dixon
reported that she
had constant, stabbing pain in her back, which traveled down both the back
and the front of her legs.
R. at 48. She reported that her legs became numb with prolonged sitting or
kneeling and that she
noticed numbness in her arms and hands as well. Id. The examiner described
her symptoms of
numbness, tingling, and weakness in the upper and lower extremities as “
neurological symptoms”
2

and stated that the neurologic examination was normal except for
decreased sensation to the upper
and lower extremities. R. at 52. The examiner stated that the neurologic
exam provided no obvious
evidence of “a radiculopathy or a neuropathic process,” and she described
magnetic resonance
imaging scans (MRIs) of the cervical and lumbosacral spine as normal. Id.
She opined that Ms.
Belt-Dixon’s neurologic symptoms were “less likely as not caused by or a
result of” her service-
connected back strain. Id.
InJuly2012,theRO grantedserviceconnection forfibromyalgia,2
assigninga40%disability
evaluation effective August 2011. R. at 821-34. That evaluation was based
on widespread
musculoskeletal pain and tender points that were constant and refractory
to therapy, as well as
irritable bowel symptoms, paresthesias,3
and Raynaud’s-like symptoms.4
R. at 828-29.
In January 2013, the Board issued the decision on appeal, assigning a 20%
evaluation for
thoracolumbar strain under DC 5237, based on limited forward flexion of
the thoracolumbar spine
greater than 30 degrees but not greater than 60 degrees. R. at 10-11. The
Board determined that Ms.
Belt-Dixon was not entitled to a separate evaluation for neurologic
impairment associated with her
service-connected back disability because neurologic symptoms had not been
objectively linked to
the back disability and because neurologic impairment was addressed in her
40% fibromyalgia
evaluation. R. at 11-12. This appeal followed.
II. ANALYSIS
Ms. Belt-Dixon argues on appeal that the Board erred in relying on the
November 2010
medical examination to deny a separate evaluation for neurologic
impairment secondary to her
service-connected back condition. Appellant’s Brief (Br.) at 5-9.
Specifically, she argues that the
examination was inadequate because, although the examiner opined that the
low back disability did
not cause neurologic impairment, the examiner did not opine as to whether
the low back disability
Fibromyalgia is pain and stiffness in the muscles and joints that either
is diffuse or has multiple trigger points.
DORLAND’S at 703.
3
Paresthesia is an abnormal touch sensation, such as burning, prickling, or
tactile hallucinations, often in the
absence of external stimulus. DORLAND’S at 734, 1383.
2
Raynaud’s phenomenon is intermittent blood deficiency to the outer
extremities, often with paresthesias and
pain, usually due to an underlying disease or anatomical abnormality.
DORLAND’S at 1430, 961.
4
3

aggravated the neurologic impairment. Id. The Secretaryargues that the
Board did not err in relying
on the November 2010 examination because the examiner was not required to
address aggravation
of neurologic impairment and because any neurologic symptoms are addressed
by the 40%
evaluation for service-connected fibromyalgia. Secretary’s Br. at 5-11.
The Court agrees with Ms.
Belt-Dixon that the Board erred in relying on the November 2010 VA medical
examination to deny
a separate evaluation for neurologic impairment secondary to the service-
connected back condition
and thus that remand is required.
A medical opinion relied on bythe Board to denya benefit must be adequate
to enable Board
review. See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (a medical
opinion “must support its
conclusion with an analysis that the Board can consider and weigh against
contrary opinions”); see
also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical
examination report
must contain not only clear conclusions with supporting data, but also a
reasoned medical
explanation connecting the two.”). An opinion is adequate “where it is
based upon consideration of
the veteran’s prior medical history and examinations and also describes
the disability in sufficient
detail so that the Board’s ‘evaluation of the claimed disability will be a
fully informed one.'” D’Aries
v. Peake, 22 Vet.App. 97, 104 (2008) (quoting Ardison v. Brown, 6 Vet.App.
405, 407 (1994)). The
Court reviews the Board’s determination that a medical examination was
adequate for clear error.
Id.
Service-connected disorders of the spine are evaluated under 38 C.F.R. §
4.71a, DCs 5235
to 5243. Note 1 under the “General Rating Formula for Diseases and
Injuries of the Spine” instructs:
“Evaluate any associated objective neurologic abnormalities . . .
separately, under an appropriate
diagnostic code.” 38 C.F.R. § 4.71a (2013). Also, this Court has held
that “any additional
impairment of earning capacityresulting from an alreadyservice-connected
condition, regardless of
whether or not the additional impairment is itself a separate disease or
injury caused by the service-
connected condition, shall be compensated.” Allen v. Brown, 7 Vet.App. 439,
448 (1995) (emphasis
in original); see also 38 C.F.R. § 3.310(b) (2013) (“[a]ny increase in
severity of a nonservice-
connected disease or injury that is proximately due to or the result of a
service-connected disease or
injury, and not due to the natural progress of the nonservice-connected
disease, will be service
connected”). More specifically, “when aggravation of a veteran’s non-
service-connected condition
4

is proximately due to or the result of a service-connected condition,
such veteran shall be
compensated for the degree of disability (but only that degree) over and
above the degree of
disability existing prior to the aggravation.” Allen, 7 Vet.App. at 448.
Thus, in addition to receiving
an evaluation under § 4.71a, DC 5237, for thoracolumbar strain, if Ms.
Belt-Dixon’s thoracolumbar
strain causes or aggravates a neurologic impairment, she is entitled to
service-connected disability
compensation for causation or for the degree of aggravation, via a
separate disability evaluation
under an appropriate diagnostic code. See id.; 38 C.F.R. §§ 3.310(b), 4.
71a.
Here, the November 2010 VA examiner acknowledged that Ms. Belt-Dixon reported that her mid-to-lower back pain was “associated with neurological symptoms” in both her upper and lower extremities; however, the examiner provided an opinion only as to whether the service-connected back disability caused those symptoms and did not opine as to whether they were aggravated by the back disability. Id. The Secretary argues that it was not error for the Board to rely on this conclusion to deny a separate evaluation for neurologic impairment because the November 2010 medical examiner was not obligated to opine as to aggravation. Secretary’s Br. at 8-10. However, this Court has held that the Board may not deny benefits based on a lack of evidence that a service-connected condition aggravated a non-service-connected condition where the medical opinion on which the Board relies only addresses causation and not aggravation. El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013) (remand required for adequate medical examination as to whether service-connected post-traumatic stress disorder aggravated deceased veteran’s alcoholism).
The Secretary’s attempt to distinguish El-Amin by arguing that the issue in that case was service connection, not evaluation, is unconvincing. Secretary’s Br. at 9.
Note 1 under the “General Rating Formula for Diseases and Injuries of the Spine,” which instructs VA rating entities to “[e]valuate any associated objective neurologic abnormalities . . .
separately, under an appropriate diagnostic code,” requires VA to determine whether any neurologic
impairment is secondary to the
service-connected spine disability under § 3.310 and to evaluate it
accordingly under the VA rating
schedule. See Allen, 7 Vet.App. at 448; 38 C.F.R. § 3.310(b) (secondary
service connection is
awarded when a disability is proximately due to, or aggravated by, a
service-connected disease or
injury); see also 38 C.F.R. §§ 4.1 (2013) (“This rating schedule is
primarilya guide in the evaluation
5

of disability resulting from all types of diseases and injuries
encountered as a result of or incident
to military service.”).
The Secretary also argues that in El-Amin, unlike here, aggravation was part of the claimant’s theory. Secretary’s Br. at 9. However, the record evidence here fairly raised the inference that the low back disability was in some way connected to neurologic impairment, either through causation or aggravation. See R. at 294-95 (veteran complained of increased back pain with numbness and
tingling in the right lower extremity in January 2008); R. at 179 (veteran reported constant radiation
of low back pain into both legs in May 2009). As a layperson, Ms. Belt-Dixon was not required to
use the term “aggravation” in her filings to place the issue before the Board. See Clemons v.
Shinseki, 23 Vet.App. 1, 5 (2009) (Board required to consider claims fairly encompassed by a lay
veteran’s filings, particularlywhere “[t]he medical evidence submitted in support of the claim clearly
raised the issue” of related diagnoses); Ingram v. Nicholson, 21 Vet.App. 232, 256 (2007) (“a
sympathetic reading of the appellant’s pleadings cannot be based on a standard that requires legal
sophistication beyond that which can be expected of a lay claimant”); see also Moody v. Principi,
360 F.3d 1306, 1310 (Fed. Cir. 2004) (“VA has a duty to ‘fully and sympathetically develop a
veteran’s claim to its optimum'” (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.
2001))). This is particularly true where § 4.71a specifically instructs the Board to evaluate “any
associated objective neurologic abnormalities” (emphasis added). In any event, the Board’s remand order was not limited to causation but rather instructed that the VA examiner opine as to “any neurological manifestations” of the back strain, note the “current level of the Veteran’s neurological disability,” and indicate whether a neurologic disability was “associated with” the back strain. R. at 62 (emphasis added). The examiner’s conclusion, which opined only that the back strain did not “cause” neurologic impairment, fell short of supplying the requested opinion. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (Board remand confers a right on claimant to compliance with the remand order). The Board then used the examiner’s opinion as to causation to conclude that neurologic symptoms had not been “objectively linked” to the back strain so as to justify a separate evaluation under § 4.71a. R. at 10.
Given that Ms. Belt-Dixon would have been entitled to a separate evaluation for neurologic
impairment if the back strain had
6

caused or aggravated that impairment, the Board’s reliance on an
examiner’s opinion that addressed
only causation was clear error. See El-Amin, and D’Aries, both supra.
The Secretary argues that the Court should affirm the Board’s decision
because Ms. Belt-Dixon is being compensated for neurologic symptoms through her 40%
evaluation for service-connected fibromyalgia. Secretary’s Br. at 10. The Court disagrees. First,
Ms. Belt-Dixon began
complaining of neurologic impairment related to her back condition at
least as early as November
2007 and therefore it appears that her claim for service connection for
neurologic impairment
secondary to her service-connected back has been pending at least since
that date. R. at 166.
However, her award of service connection for fibromyalgia became effective
August 2011, the date
that she apparently filed an initial claim for service connection for that
condition. R. at 821-22.
Therefore, at the current time anyneurologic impairment she experienced
before August 2011 is not
serviceconnected. See38U.S.C. §5110(a). Thus,anycurrentevaluation for
neurologic impairment
related to fibromyalgia does not address whether Ms. Belt-Dixon is
entitled to service connection
for neurologic impairment associated with her service-connected back
condition at least as early as
November 2007.
Second, even if she were entitled to an earlier effective date for service-
connected
fibromyalgia, the record does not reflect that the pain, numbness, and
tingling Ms. Belt-Dixon was
experiencing in her extremities beginning in November 2007 and continuing
through the November
2010 examination are attributable to fibromyalgia. Accordingly, Ms. Belt-
Dixon is entitled to a
medical determination as to whether and to what extent neurologic symptoms
apparently beginning
in 2007 were aggravated by service-connected thoracolumbar strain.
For the reasons stated above, the Court will set aside the Board decision
and remand the
matter for a new VA medical opinion that considers the evidence of record
and expressly opines as to whether Ms. Belt-Dixon’s service-connected thoracolumbar strain aggravated her non-service-connected neurologic condition and, if so, to what degree. See El-Amin, 26 Vet.App. at 141. On
remand, Ms. Belt-Dixon is free to submit any additional evidence and
argument, including the
arguments raised in her brief to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
7

submitted.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112.

III. CONCLUSION
Upon consideration of the foregoing, the Board’s January14, 2013, decision
is SET ASIDE,
and the matter is REMANDED to the Board for additional development and
further proceedings consistent with this decision.
DATED: April 29, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
8

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