Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6894
ROBERT J. LIVINGSTON, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Robert J. Livingston, Jr., through counsel appeals a
July 16, 2019, Board of Veterans’ Appeals (Board) decision that denied a disability rating in excess
of 20% for a lumbosacral disability, and denied a disability rating in excess of 10% for lumbar
radiculopathy of the left lower extremity from January 31, 2017. Record (R.) at 4-23. The Board
awarded entitlement to disability compensation for coronary artery disease and an earlier effective
date—January 31, 2017—for the appellant’s 10% disability rating for left lower extremity
radiculopathy. These are favorable findings that the Court may not disturb. See Medrano
v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom. Medrano
v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377
(1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . .
decisions which are adverse to a claimant.”). 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).
On March 25, 2021, the Court stayed proceedings in this matter pending the Court’s
resolution of Chavis v. McDonough, _ Vet.App. _, No. 18-2928, 2021 WL 1432578 (Apr. 16,
2021). Having decided Chavis, the Court will lift the stay in this matter. This appeal is timely, and
the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and
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7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990). For the following reasons, the Court will vacate the Board’s decision denying a disability
rating in excess of 20% for a lumbosacral disability and a disability rating in excess of 10% for
left lower extremity radiculopathy, and the Court will remand those matters for further proceedings
consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from September 1965 to
November 1968. R. at 820. In February 1969, a VA regional office (RO) granted disability
compensation for a lumbosacral strain and assigned a 20% rating. R. at 1529-30. The appellant
filed a claim for an increased rating in July 2011; he reported constant pain that was, at times,
completely incapacitating. R. at 1157. Following an October 2011 VA examination, the RO denied
the claim in February 2012. R. at 986-88, 993-1000; see R. at 1010-12. The appellant disagreed
with the denial and perfected an appeal to the Board. R. at 878, 890-927, 974.
A March 2014 VA treatment record reflects that the appellant experienced low back pain,
with pain radiating to the lower extremities. R. at 636-37. In December 2016, he presented to the
emergency room with complaints of increased low back pain; he reported being unable to bear
weight on his left leg for several minutes upon rising from bed and that he had continued pain to
the left leg. R. at 597. Radiologic findings in January 2017 include “[m]oderate disc desiccation”
at the L5-S1 level and “encroachment upon the left S1 nerve by disc material.” R. at 470.
The Board, in January 2018, found the October 2011 VA examination inadequate and
remanded the claim to obtain VA treatment records and a new VA medical examination that
complied with the requirements set forth in Correia v. McDonald, 28 Vet.App. 158, 168-70
(2016). R. at 693-95. In the interim, in May 2018, the appellant submitted another request for an
increased disability rating for his low back disability. R. at 555-58. He underwent a VA spine
examination the following month. R. at 409-20. The examiner noted diagnoses of degenerative
arthritis of the spine and left lower extremity radiculopathy, involving the sciatic nerve, both with
an April 6, 2017, date of diagnosis. R. at 410, 415. Radicular symptoms included mild intermittent
pain (usually dull) and numbness, and the examiner classified the overall severity of radiculopathy
as “mild.” Id.
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In an August 2018 rating decision, the RO awarded disability compensation for left leg
radiculopathy involving the sciatic nerve as secondary to the appellant’s service-connected low
back disability and assigned a 10% rating, effective May 8, 2018, the date of his claim. R. at 325;
see R. at 316-33, 362-64. The appellant filed a Notice of Disagreement (NOD) with the denial of
several claims that were adjudicated in the August 2018 decision; he did not express disagreement
with the disability rating or effective date assigned to his left leg radiculopathy. R. at 310-12.
The appellant underwent another VA spine examination in February 2019. R. at 193-201.
This examiner also noted that there was left lower extremity radiculopathy involving the sciatic
nerve. R. at 198-99. Radicular symptoms included mild intermittent pain (usually dull),
paresthesias and/or dysesthesias, and numbness, and the examiner again classified the overall
severity of radiculopathy as “mild.” Id.
The RO issued a Supplemental Statement of the Case in April 2019, denying a rating in
excess of 20% for lumbosacral strain. R. at 91-101. In the July 2019 decision on appeal, the Board
denied a rating in excess of 20% for a lumbosacral disability and a rating in excess of 10% for
radiculopathy of the left lower extremity. However, the Board granted an earlier effective date—
January 31, 2017—for radiculopathy of the left lower extremity. R. at 4-23. This appeal followed.
II. ANALYSIS
A. Lumbosacral Disability
The appellant argues that the Board erred by relying on the 2011, 2018, and 2019 VA
examinations to deny a rating in excess of 20% for his low back disability. Appellant’s Brief (Br.)
at 9-20. He asserts that the examinations are inadequate because the examiners did not conduct all
the testing required by Correia, estimate functional loss during flare-ups, and explain their
definition of repeated use over time. Id. The appellant further contends that the Board failed to
adequately explain why consideration of functional loss under 38 C.F.R. §§ 4.40 and 4.45 did not
warrant a higher rating. Id. at 20-23. The Secretary counters that the examination reports, when
taken together, are adequate for adjudication purposes, arguing in part that the 2019 examination
cured the deficiencies in the 2011 and 2018 examinations. Secretary’s Br. at 11-21.
In the decision on appeal, the Board outlined the applicable law and regulations pertinent
to rating the appellant’s lumbar spine disability and summarized the lay and medical evidence of
record before concluding that a rating in excess of 20% was not warranted. R. at 12-19. The Board
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found no objective medical evidence demonstrating limitation of motion consistent with the
schedular criteria for a higher rating, and no evidence of additional loss of motion on repetitive
use or during flare-ups. R. at 18-19.
Here, the Court cannot address whether the Board erred when it relied on the 2011, 2018,
and 2019 VA examinations to deny a higher disability rating for the appellant’s low back disability
because the Board made no findings regarding the adequacy of those examinations. See R. at
12-19; D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam). Although the parties make
competing arguments as to whether the examinations are adequate, see Appellant’s Br. at 9-20;
Reply Br. at 1-5; Secretary’s Br. at 11-21, the Court’s review is frustrated by the Board’s failure to
make the necessary factual findings in the first instance, see Hensley v. West, 212 F.3d 1255, 1263
(Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”); see also
38 U.S.C. § 7261(c). For example, resolving this issue would require the Court in the first instance
to determine whether (1) the 2019 examination cured the deficiencies in the 2011 and 2018
examinations, (2) all required testing was completed to adequately assess the appellant’s pain on
motion, (3) the examiners estimated functional loss during flare-ups and explained their definition
of repeated use over time, and (4) the examination results are consistent with the appellant’s
description of functional loss after repetitive use and during flares. See Sharp v. Shulkin,
29 Vet.App. 26, 35 (2017); Correia, 28 Vet.App. at 170; DeLuca v. Brown, 8 Vet.App. 202 (1995);
38 C.F.R. §§ 4.40, 4.45, 4.59 (2020). The Court may not resolve these factual disputes or evaluate
their potential effect on the Board’s findings. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.
Cir. 2013) (“[T]he evaluation and weighing of evidence are factual determinations committed to
the discretion of the factfinder—in this case, the Board.”); see also Hensley, 212 F.3d at 1263.
Accordingly, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998).
B. Left Lower Extremity Radiculopathy
In his opening brief, the appellant argues that the Board failed to define relevant terms—
“mild” and “moderate” incomplete paralysis, delegated its adjudicatory responsibilities to the 2019
VA examiner who classified the appellant’s radiculopathy as mild, and provided inadequate
reasons or bases for denying a rating in excess of 10% for left lower extremity radiculopathy.
Appellant’s Br. at 23-27. The Secretary first contends that the Court should decline to address the
appellant’s arguments, asserting that the Board erroneously exercised jurisdiction over the rating
assigned to the appellant’s radiculopathy. Secretary’s Br. at 21-23. He argues that the plain meaning
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of Note 1 of the General Rating Formula for Diseases and Injuries of the Spine (General Rating
Formula) “is that when there is evidence of record demonstrating an objective neurological
abnormality that is clearly associated with the underlying, service-connected spine disease or
injury, that objective neurological abnormality must be evaluated [‘]separately[] under an
appropriate diagnostic code'”; it “does not remove the requirement to file a[n] NOD to disagree
with any neurological evaluation assigned via Note[]1[].” Id. at 22-23 (quoting 38 C.F.R. § 4.71a,
Note 1 (2020)). Regarding the merits, the Secretary argues that the 2019 examination report
provides a plausible basis for the Board’s decision and that the Board was not required to define
“mild” and “moderate” or to discuss the provisions of VA’s Adjudication Procedures Manual,
M21-1 cited by the appellant—M21-1, pt. III, subpt. iv, ch. 4, §§ N.4.b-c. Id. at 24-27.
In his reply brief, the appellant argues that the Court’s recent opinion in Bailey v. Wilkie,
33 Vet.App. 188 (2021), supports the Board’s exercise of jurisdiction. Reply Br. at 5-7. In
particular, he contends that the evidence developed during the adjudication of his increased-rating
claim reasonably raised a causal relationship between his lumbar disability and radiculopathy, that
38 C.F.R. § 3.155 governs the scope of his 2011 increased-rating claim, and that the RO’s grant of
secondary service connection did not divest the Board of jurisdiction over his initial appeal, which
encompassed his secondary disability. Id.
- Board Jurisdiction over Radiculopathy
In the decision on appeal, the Board acknowledged that the RO awarded a 10% disability
rating for left lower extremity radiculopathy and that the appellant did not file an NOD with the
RO’s decision. R. at 20. The Board nonetheless addressed the appropriate rating and effective date,
noting that “the Board’s analysis of the lumbar spine claim includes any associated neurological
impairment.”1 Id.
The Court exercises de novo review over Board determinations that are critical to its
jurisdiction. See Evans v. Shinseki, 25 Vet.App. 7, 10 (2011). Pursuant to Note 1 of the General
Rating Formula, when VA evaluates the severity of a spine disability, it must also consider whether
there are any associated neurological complications and, if so, it must rate those complications
separately. 38 C.F.R. § 4.71a, General Rating Formula, Note 1; see VA ADJUDICATION
PROCEDURES MANUAL, M21-1, pt. III, subpt. 4, ch. 4, § A.5.a (directing rating specialists to
1 The Board’s grant of an earlier effective date is not before the Court. See Bond, 2 Vet.App. at 377. And the
appellant does not on appeal contend that an effective date earlier than that assigned by the Board is warranted.
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“evaluate conditions based on chronic orthopedic manifestations . . . and any associated
neurological manifestations . . . by assigning separate evaluations for the orthopedic and
neurological manifestations”). The Court in Chavis, in concluding that the Board had jurisdiction
to consider the proper initial rating for the appellant’s radiculopathy in connection with his appeal
of an increased rating for his low back disability, recently reaffirmed that “VA’s consideration of
. . . neurologic manifestations as part of the claim seeking higher compensation for the lumbar
spine disability is . . . consistent with VA’s duty to sympathetically read pro se pleadings.” Chavis,
2021 WL 1432578, at *12. Notably, the Court in Chavis reached that conclusion notwithstanding
the RO’s intervening initial award of secondary service connection for radiculopathy and
assignment of initial ratings, and the absence of any disagreement with the RO’s decision. Id. at
*3, *11, *13. Additionally, the Court in Bailey recently held that “VA is required to develop and
adjudicate related claims for secondary service connection for disabilities that are reasonably
raised during the adjudication of a formally initiated claim for the proper evaluation level for the
primary service-connected disability.” 33 Vet.App. at 203; see Sellers v. Wilkie, 965 F.3d 1328,
1337 (Fed. Cir. 2020) (noting that regulations requiring claimants to submit formal claims do not
alter “‘VA’s general practice of identifying and adjudicating issues and claims that logically relate
to the claim pending before . . . VA'” (quoting Veterans Just. Grp., LLC v. Sec’y of Veterans Affs.,
818 F.3d 1336, 1356 (Fed. Cir. 2016)); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2011).
Here, the Court concludes that the appellant’s radiculopathy rating was properly before the
Board. Assuming, as argued by the appellant, that Bailey applies, the Court agrees that the RO’s
adjudication of his May 2018 claim for an increased rating for his back disability and the RO’s
award of secondary service connection for radiculopathy could not divest the Board of jurisdiction
over the appellant’s initial appeal. See Bailey, 33 Vet.App. at 203-04; see also Warren
v. McDonald, 28 Vet.App. 214, 221-22 (2016). Rather, in accordance with the reasoning applied
in Bailey, which relied on Warren, if, during the adjudication of the appellant’s 2011 claim, the
record reasonably raised the issue of entitlement to disability compensation for radiculopathy, the
Board in the decision on appeal would have jurisdiction to decide that matter. See Bailey,
33 Vet.App. at 203-04.2 In that regard, the Court concludes that the record reasonably raised the
2 The Court notes that the decision in Warren appears to suggest that the Board in this case did not have
jurisdiction to address whether an earlier effective date was warranted for the RO’s 2018 award of secondary service
connection—an issue that indisputably was not in appellate status. 28 Vet.App. at 221 (concluding, in the context of
two claims simultaneously proceeding before VA, that the Board improperly focused on an issue related to the second
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possibility of a separate evaluation for left lower extremity radiculopathy because there is evidence
of neurological manifestations related to the appellant’s back disability. See R. at 20 (Board finding
January 31, 2017, as the date of onset), 198-99 (Feb. 2019 examination report), 410 (June 2018
examination report), 415 (same), 469-70 (Jan. 2017 radiologic findings), 636-37 (Mar. 2014
treatment record). Although the Board may have incorrectly framed its analysis solely in terms of
whether a rating in excess of 10% was warranted, the Court concludes that, pursuant to Note 1 and
Chavis, the Board had jurisdiction to evaluate any associated neurological manifestations as part
of the appellant’s 2011 claim for an increased rating for a low back disability. - Merits
The appellant’s left lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a,
Diagnostic Code (DC) 8520, which provides ratings for incomplete paralysis of the sciatic nerve.
See R. at 19-21. That DC provides a 10% rating for mild incomplete paralysis, a 20% rating for
moderate incomplete paralysis, a 40% rating for moderately severe incomplete paralysis, and a
60% rating for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a,
DC 8520 (2020).
In its decision, the Board concluded that a rating in excess of 10% was not warranted. R. at - In reaching that determination, the Board found that “VA and private medical records reflect
symptoms . . . no more than mild in nature, clearly indicated in the [appellant’s] most recent
February 2019 evaluation.” Id. The Board noted that the appellant’s symptoms were wholly
sensory, the symptoms manifested as numbness and intermittent pain, and the results of muscle
strength, reflex, and sensory examinations were normal. Id.
The Court agrees with the appellant that the Board failed to adequately explain its
determination that his lower extremity radiculopathy did not warrant a rating in excess of 10%. In
that regard, the Court notes that the issues raised by the appellant are similar to the contentions
addressed in Chavis. Specifically, the Court in Chavis accepted the parties’ agreement that the
Board provided inadequate reasons or bases because the Board failed to define the subjective terms
in DC 8520, did not address a provision in the M21-1, which provides benchmarks for assessing
claim stream and not in appellate status—effective date—rather than adjudicating the initial claim stream—
entitlement to service connection—to completion). However, as noted above, the Board’s grant of an earlier effective
date is not before the Court and the appellant does not challenge the assigned date. Accordingly, the Court need not
address whether the Board’s determination—which effectively resulted in an award of secondary service connection
for radiculopathy from January 31, 2017, and no earlier, deprived the appellant of one review on appeal. See 38 U.S.C.
§ 7104.
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the severity of nerve conditions, and adopted the VA examiner’s assessment of the veteran’s
disability level. 2021 WL 1432578, at *13-14.
Similarly, the Board in this case did not define the terms mild or moderate incomplete
paralysis contained in DC 8520 or address the benchmarks for mild and moderate incomplete
paralysis established in VA’s M21-1. See Chavis, 2021 WL 1432578, at *13 (“Without established
benchmarks for those subjective terms, the Court is left without standards upon which to review
the Board’s decision.” (citing Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018); Buczynski
v. Shinseki, 24 Vet.App. 221, 224 (2011))); see also M21-1, pt. III, subpt. iv, ch. 4, §§ N.4.b-c.
Even assuming, as argued by the Secretary, that the Board is not bound by the M21-1, the Court
in Chavis reiterated that “the standards provided in the M21-1 are ‘relevant guidance promulgated
for the purpose of facilitating the efficient and proper resolution of claims,’ which the Board must
consider and address as part of its duty to provide a reasoned explanation for its decision.”
2021 WL 1432578, at *14 (quoting Healey v. McDonough, _ Vet.App. _, No. 18-6970,
2021 WL 710847, *5-6 (Feb. 24, 2021)); see Overton v. Wilkie, 30 Vet.App. 257, 264 (2018). But
see Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs., 981 F.3d 1360, 1374-82 (Fed.
Cir. 2020) (concluding that an M21-1 provision was binding on certain VA adjudicators, was
essentially substantive in nature, and should have been published in the Federal Register). The
Board’s failure in these respects frustrates judicial review. See 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).
Accordingly, remand is warranted. See Tucker, 11 Vet.App. at 374.
C. Remand
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
evidence and argument on the remanded matters, including the specific arguments raised here on
appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that
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“[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
The stay of proceedings is lifted. After consideration of the parties’ pleadings and a review
of the record, the Board’s July 16, 2019, decision denying a disability rating in excess of 20% for
a lumbosacral disability and a disability rating in excess of 10% for left lower extremity
radiculopathy is VACATED, and the matters are REMANDED for further proceedings consistent
with this decision.
DATED: April 29, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel 027)
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