Veteranclaims’s Blog

June 30, 2018

Single Judge Application; Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); Board must state which lay statements the Board is referring; Board must explain how lay statements are contradicted by “objective clinical findings.”;

Excerpt from decision below:

The appellant’s argument is persuasive.2
In its analysis, the Board found that the appellant’s lay statements regarding his back
symptomatology were both competent and credible to the extent that they reflected “factual matters” capable of lay observation. R. at 20. Nonetheless, for both “stages” on appeal, the Board determined that the “objective clinical findings . . . do not support the Veteran’s contentions regarding the severity of his disability.” R. at 16, 19. The Board’s analysis is flawed in two major respects: it is not clear to which lay statements the Board is referring, and the Board did not explain how those statements are contradicted by “objective clinical findings.” R. at 16, 19. The only evidence cited in the analysis for either “stage” is the appellant’s report to the June 2009 VA examiner that he has pain at night and with prolonged standing. R. at 16, 19. Thus, it is not clear, particularly with respect to the second “stage,” what specific evidence the Board found less

2 The Secretary argues that the appellant should not be permitted to raise arguments that were not advanced in the October 2013 JMR. Secretary’s Br. at 6-10 (citing Carter v. Shinseki, 26 Vet.App. 534, 542-43 (2014), overruled on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015)). Yet, while the parties agreed that remand
was required for further discussion of whether referral for extraschedular consideration was warranted, they also agreed that such discussion would take place when the appellant’s increased-rating and TDIU claims were readjudicated, i.e., that that extraschedular consideration would be part and parcel of the remanded claims, not a standalone issue. R. at 343-44. Further, the JMR contemplated that the appellant might submit additional evidence and argument and that the Board must consider any such evidence and argument. R. at 344. Ultimately, the Board issued a de novo decision on the schedular rating assigned for the appellant’s service-connected back disability, which the
appellant is free to challenge before the Court. Therefore, the Court rejects the Secretary’s argument.
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probative. Furthermore, the Board did not explain how these complaints were inconsistent with the clinical findings, which also documented pain and difficulty with prolonged standing. See, e.g., R. at 129, 537, 647. In fact, the Board expressly found that the appellant’s pre-August 2014 statements “do not contradict,” i.e., are consistent with, the objective clinical findings. R. at 16.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0903
DENTON D. JONES, APPELLANT,
V.
PETER O’ROURKE,
ACTING 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, Denton D. Jones, through counsel, appeals a
January 27, 2017, Board of Veterans’ Appeals (Board) decision that denied (1) a disability rating, prior to August 4, 2014, in excess of 10% for residuals of fracture of the thoracic spine; (2) a rating
in excess of 40% for thoracic spine disability from August 4, 2014; and (3) entitlement to a total
disability rating based on individual unemployability (TDIU). 1 Record of Proceedings
(R.) at 2-28. For the following reasons, the Court will vacate the Board’s decision and remand the
vacated matters for additional development and further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from April 1979 to April 1982.
R. at 734. In July 1988, a VA regional office (RO) granted his claim for residuals of thoracic spine
fracture and assigned a noncompensable disability rating. R. at 767.
1 The January 27, 2017, Board decision also denied entitlement to a rating in excess of 10% for left lower
extremity radiculopathy. The appellant does not challenge this aspect of the Board’s decision. Accordingly, this
matter is deemed abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
2
In January 2008, the appellant filed an increased-rating claim for his service-connected
spine condition. R. at 736-46. In July 2008, an RO continued the assigned noncompensable rating.
R. at 711-12. The appellant appealed that decision. R. at 653, 701.
In June 2009, the appellant underwent a VA spine examination. R. at 647-49. He reported
back pain at night and “when standing for long periods of time.” R. at 647. He denied any
incapacitating episodes in the previous year, but had taken a couple of days off work as a result of
his symptoms. Id. Range-of-motion testing revealed normal forward flexion and lateral rotation,
but extension was limited to 10 degrees, right lateral flexion was limited to 20 degrees, and left
lateral flexion was limited to 25 degrees. Id. Motor strength was normal, and sensation was intact.
Id. After repetitive-use testing, the appellant’s pain increased, but no further functional limitations
were shown. R. at 648.
In October 2011, an RO granted an increased 10% rating, effective the date of the June
2009 examination. R. at 560-63. A subsequent rating decision granted an earlier effective date of
January 25, 2008, the date the increased rating claim was received. R. at 507-09.
The appellant underwent an additional VA examination in April 2012. R. at 532-44. He
reported daily mild to severe pain, R. at 533, and “intolerable” pain with any strenuous physical
activity, R. at 544. Range-of-motion testing was normal except that forward flexion was limited
to 80 degrees and left lateral flexion was limited to 20 degrees. R. at 534-35. After repetitive use,
the appellant’s range of motion was normal in all planes. R. at 536. The examiner documented
symptoms of reduced movement, pain on movement, and tenderness. R. at 537. Muscle strength
and sensory examinations were normal. R. at 538-39. The examiner opined that the appellant had
intervertebral disc syndrome (IVDS), with no incapacitating episodes in the past year. R. at 541.
However, the appellant reported that he had left his last job because of his back disability. R. at
533.
In April 2013, the Board denied the appellant’s request for a spine disability rating in excess
of 10%. R. at 454-73. However, the Board determined that entitlement to TDIU was reasonably
raised during the April 2012 VA examination and remanded that matter for additional
development. R. at 474-77. The appellant appealed that decision to the Court, and in October
2013 the parties agreed that a joint motion for remand (JMR) was warranted for the Board to
further consider whether an extraschedular rating was appropriate. R. at 341-45.
3
The appellant underwent a third VA examination in August 2014. R. at 121-30. He
reported that his back pain had increased, and that his range of motion was more limited,
“especially twisting and reaching from side to side.” R. at 122. He had begun to experience
flareups with prolonged standing, bending forward, and carrying a load. Id. He occasionally used
a cane, and in the past year had incapacitating episodes of IVDS for a cumulative total of at least
4, but less than 6, weeks. R. at 126. On range-of-motion testing, forward flexion was limited to
50 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, and left lateral flexion to
20 degrees. R. at 122-23. There was no limitation of right or left lateral rotation, and no additional
limitation after repetitive use testing. R. at 123-24. He had normal muscle strength and normal
sensory findings. R. at 124-25. The examiner documented findings of limited movement, pain on
movement, and interference with sitting, standing, or weight-bearing. R. at 124. The examiner
opined that there was no evidence of ankyloses, but that the appellant would have difficulty with
jobs involving prolonged standing or leaning forward. R. at 128-29.
In August 2014, the RO increased the appellant’s rating to 40% for the service-connected
back disability, effective August 4, 2014, the date of his VA examination. R. at 194-96. TDIU
was denied. R. at 197.
In January 2017, the Board issued the decision on appeal, denying the appellant entitlement
to increases in the assigned “staged” ratings for his back disability and to TDIU. R. at 2-28. In so
doing, the Board found the appellant “competent to report on factual matters” capable of lay
observation, and determined that his “reports concerning symptomatology have been credible.”
R. at 20. However, the Board found that the appellant, as a lay person, was not “competent to
discern the current nature, extent, and severity of his back condition.” Id. This appeal followed.
II. ANALYSIS
A. Increased Ratings for the Thoracic Spine
“Lay testimony is competent . . . to establish the presence of observable symptomatology.”
Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (emphasis omitted). The Board has discretion to
determine whether lay testimony “is competent and sufficient in a particular case.” Jandreau v.
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the lay evidence is competent, the Board may
weigh the competent lay evidence against the other evidence of record in determining credibility.
Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). When the Board analyzes the
4
credibility and probative value of evidence, it must account for evidence that it finds persuasive or
unpersuasive and provide reasons for its rejection of 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). In so doing, the Board must provide a statement of the reasons or bases for its
determination, 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); see Allday v. Brown,
7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
The appellant argues that the Board’s decision to deny increases in the “staged” ratings for
his service-connected back disability is not supported by an adequate statement of reasons or bases.
Appellant’s Brief (Br.) at 17-20. Specifically, he contends that the Board erred in favoring
objective clinical findings over his own lay reports of functional impairment. Id. at 18-20 (see R.
at 16, 19-20). The Secretary asserts that “it is the Board’s duty to perform credibility analyses and
make probative findings,” and that the Board did not err in so doing. Secretary’s Br. at 22-23.

The appellant’s argument is persuasive.2
In its analysis, the Board found that the appellant’s lay statements regarding his back symptomatology were both competent and credible to the extent that they reflected “factual matters” capable of lay observation. R. at 20. Nonetheless, for both “stages” on appeal, the Board determined that the “objective clinical findings . . . do not support the Veteran’s contentions regarding the severity of his disability.” R. at 16, 19. The Board’s analysis is flawed in two major respects: it is not clear to which lay statements the Board is referring, and the Board did not explain how those statements are contradicted by “objective clinical findings.” R. at 16, 19. The only evidence cited in the analysis for either “stage” is the appellant’s report to the June 2009 VA examiner that he has pain at night and with prolonged standing. R. at 16, 19. Thus, it is not clear, particularly with respect to the second “stage,” what specific evidence the Board found less
2 The Secretary argues that the appellant should not be permitted to raise arguments that were not advanced in the October 2013 JMR. Secretary’s Br. at 6-10 (citing Carter v. Shinseki, 26 Vet.App. 534, 542-43 (2014), overruled on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015)). Yet, while the parties agreed that remand was required for further discussion of whether referral for extraschedular consideration was warranted, they also agreed that such discussion would take place when the appellant’s increased-rating and TDIU claims were
readjudicated, i.e., that that extraschedular consideration would be part and parcel of the remanded claims, not a standalone issue. R. at 343-44. Further, the JMR contemplated that the appellant might submit additional evidence and
argument and that the Board must consider any such evidence and argument. R. at 344. Ultimately, the Board issued a de novo decision on the schedular rating assigned for the appellant’s service-connected back disability, which the
appellant is free to challenge before the Court. Therefore, the Court rejects the Secretary’s argument.
5
probative. Furthermore, the Board did not explain how these complaints were inconsistent with the clinical findings, which also documented pain and difficulty with prolonged standing. See, e.g., R. at 129, 537, 647. In fact, the Board expressly found that the appellant’s pre-August 2014 statements “do not contradict,” i.e., are consistent with, the objective clinical findings. R. at 16.
While the Board’s statement of legal principles governing evaluation of lay testimony may
be accurate, see Secretary’s Br. at 22-23, its analysis lacks explanation for how those principles
relate to the specific facts of this case. The Board’s failure to adequately explain or discuss its
rejection of the favorable lay evidence—or even to identify the specific evidence rejected—
frustrates judicial review. See Caluza, 7 Vet.App. at 506. On remand, the Board must reassess
the probative weight of the appellant’s lay statements and adequately explain its conclusions, to
include identifying which lay statements, if any, it affords less probative value.
B. TDIU
Regarding the appellant’s entitlement to TDIU, the Court finds that this matter is
inextricably intertwined with the remanded back disability claim because a finding of entitlement
to an increased rating for either “stage” may affect the Board’s evaluation of his entitlement to
TDIU. See Tyrues v. Shinseki, 23 Vet.App. 166, 178 (2009) (finding that the Court has discretion
to determine whether claims denied by the Board are so inextricably intertwined with a matter still
pending before VA that claims should be remanded to await development or disposition of a claim
not yet finally decided) aff’d, 631 F.3d 1380 (Fed. Cir. 2011), vacated, 565 U.S. 802 (2011),
reinstated as modified, 26 Vet.App. 31 (2012) (per curiam order), aff’d, 732 F.3d 1351 (Fed. Cir.
2013); Gurley v. Nicholson, 20 Vet.App. 573, 575 (2007) (recognizing the validity of remands
based on judicial economy when issues are inextricably intertwined); Harris v. Derwinski,
1 Vet.App. 180, 183 (1991) (holding that, where a decision on one issue would have a “significant
impact” on another, and that impact in turn “could render any review by this Court of the decision
[on the other claim] meaningless and a waste of judicial resources,” the two claims are inextricably
intertwined). Thus, the Court will also remand this issue.
III. CONCLUSION
Given this disposition, the Court will not address the remaining arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam). On remand,
the appellant is free to present any additional arguments and evidence to the Board in accordance
6
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to
entail a critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
38 U.S.C. § 7112.
Upon consideration of the foregoing, the January 27, 2017, Board decision is VACATED
and the matters REMANDED for further proceedings consistent with this decision.
DATED: June 28, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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