Veteranclaims’s Blog

August 12, 2017

Single Judge Application; Mitchell, 25 Vet.App.at 43-44 (quoting DeLuca, 8 Vet.App. at 206); Spine ROM; DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995); 38 C.F.R. § 4.40 (2016); 38 C.F.R. § 4.45;

Excerpt from decision below:

“In DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995), the Court held that musculoskeletal DCs based on limitation of motion—such as DC 5242 and 5237—do not subsume the factors listed in §§ 4.40 and 4.45. Thus, when evaluating musculoskeletal disabilities under such DCs, in addition to considering measured limitation of motion, VA must assess functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2016). Moreover, § 4.45 states that pain on movement is a relevant factor and that an evaluation must consider “[i]nstability of station, disturbance of locomotion, [and] interference with sitting, standing and weight-bearing.” 38 C.F.R. § 4.45(f) (2016). Medical opinions addressing the symptoms and severity of musculoskeletal disabilities must take into account these considerations, including during flare-ups, and, to the extent possible, express any functional loss in terms of the degree of additional range-of-motion loss so VA can assign a schedular evaluation that accurately reflects the extent of overall functional loss. See DeLuca, 8 Vet.App. at 206-07. A DeLuca analysis is appropriate when evaluating musculoskeletal disabilities under the general rating formula for the spine. See, e.g., Thompson v. McDonald, 815 F.3d 781, 784 (Fed. Cir. 2016) (observing that, although the relevant portion of § 4.71a addresses the spine and provides for disability evaluations with or without pain, it contains no mention of functional loss as such); Cullen v. Shinseki, 24 Vet.App. 74, 84-86 (2010).
Section 4.40 was considered further in Mitchell, where the Court held that “the plain language of [§ 4.40] is unambiguous that, although pain may cause [] functional loss, pain itself does not constitute functional loss.” 25 Vet.App. at 37. Nevertheless, the Court also stated that, “in the context of examinations evaluating functional loss in the musculoskeletal system under DCs based upon limitation of motion, DeLuca stands for the proposition that when pain is associated with movement, to be adequate for rating purposes an examination must ‘compl[y] with the
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requirements of § 4.40,'” and that “‘the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [limb] is used repeatedly over a period of time.'” Id. at 43-44 (quoting DeLuca, 8 Vet.App. at 206).
Relevant to the arguments on appeal, the Board found Mr. Scott not entitled to an evaluation higher than 20% for service-connected lumbar spine condition under the General Rating Formula for Diseases and Injuries of the Spine because the evidence of record did not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis. The Board acknowledged evidence of flare-ups and complaints of pain but explained that the evidence did not show that during those flare-ups or complaints the veteran was limited to flexion of 30 degrees or less. R. at 8-9. Later in its decision, the Board stated that it considered the veteran’s statements regarding difficulty with standing, walking, prolonged sitting, bending lifting, climbing stairs, and performing activities of daily living during flare-ups, but determined that “some of the [v]eteran’s lay reports are inconsistent with the other evidence of record” and, thus, less probative than the medical findings of record. R. at 11-12.
Although the Board cited to the aforementioned evidence and to §§ 4.40 and 4.45, it did not conduct a Deluca analysis. The Board focused on whether evidence showed flexion less than 30 degrees and did not consider whether Mr. Scott’s functional limitations were the equivalent of additional ROM loss or equated to higher evaluation criteria. See Deluca, 8 Vet.App. at 206. The Board did not address whether lumbar spine pain interfered with or affected the normal strength, speed, coordination, or endurance of the spine, see 38 C.F.R. § 4.40, nor did it consider whether the veteran’s condition interfered with sitting, standing, or weight-bearing, see 38 C.F.R. § 4.45. Indeed, the evidence of record shows that during flare-ups, the veteran’s activities were restricted as he could not move or perform activities of daily living without assistance and was limited to bed rest. R. at 933, 939, 1172. Moreover, the January 2015 VA examination report reflects the veteran’s reports of increased pain and difficulty bending, heavy lifting, stooping, tying his shoes, picking up objects from the floor, and prolonged standing and walking. R. at 248″

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-1898
ANTHONY W. SCOTT, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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 Anthony W. Scott appeals through counsel a April 27, 2016, Board of Veterans’ Appeals (Board) decision that denied entitlement to an evaluation higher than 20% for degenerative disc disease (DDD) with spondylosis of the lumbar and thoracolumbar junction. Record (R.) at 2-15.1 Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the April 27, 2016, Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision.
I. FACTS
Mr. Scott served on active duty in the U.S. Army from September 1972 to September 1974. R. at 352.
1 The Board remanded the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) due to a lumbar spine disability. R. at 14-15. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider that issue at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2016).
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In January 1977, a VA regional office (RO) granted service connection for a lumbar spine condition and assigned a 10% evaluation. R. at 1553-54. In November 2008, the veteran sought an increased evaluation for that condition. R. at 1277-78.
In May 2009, Mr. Scott underwent a VA examination during which he reported spasms, weakness, stiffness, decreased motion, and daily severe, sharp mid- to lower-back pain lasting hours. R. at 1170-86. He reported severe flare-ups every 2 to 3 weeks, lasting 3 to 7 days, characterized by significant pain with restriction in activities, requiring him to lay down. R. at 1172. The veteran reported using a cane and a walker and could walk one quarter of a mile. Id. The examiner recorded thoracolumbar spine flexion to 90 degrees, extension to 30 degrees, and left and right lateral flexion and rotation to 30 degrees, with objective evidence of pain on motion, and objective evidence of pain following repetitive motion with no additional limitation of motion. R. at 1177.
In May 2009, the RO continued the assigned 10% evaluation for the lumbar spine condition. R. at 1165-66. Mr. Scott filed a timely Notice of Disagreement (NOD) with that decision and ultimately appealed to the Board. R. at 1096-97; 872-73.
In December 2009, a VA physician noted that the veteran’s lumbosacral range of motion (ROM) was severely limited in all directions. R. at 1804. That same month, the veteran reported that back pain along with other conditions limited his ability to work. R. at 997-98.
During a May 2010 VA examination, Mr. Scott reported his back condition had worsened, he experienced severe flare-ups every 1 to 2 months lasting 2 to 4 weeks and triggered by routine and innocuous movement, requiring bed rest, and alleviating factors included rest, time, and pain medication. R. at 932-33. The veteran reported fatigue, decreased motion, stiffness, weakness, spasms, and daily moderate, constant, and throbbing pain. Id. The examiner noted thoracolumbar spine ROM with flexion to 90 degrees, extension to 30 degrees, and left and right lateral flexion and rotation to 30 degrees, with no objective evidence of pain on motion. R. at 935. The examiner also noted no objective evidence of pain or additional limitations with repetitive motion. Id. The examiner opined that the veteran could perform activities of daily living except when experiencing a flare-up, during which he required full assistance as he was unable to support his weight, including while showering, and was unable to perform household chores due to limitations caused by pain. Id. The examiner also noted that the veteran could not stand for more than one hour and
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was unable to sit for more than 20 to 30 minutes in a normal sitting position, with the ability to sit for longer if the lower right extremity were extended. Id.
During an October 2013 Board hearing Mr. Scott testified that his back condition had worsened significantly and that when his muscles “act up” he has to spend 3 to 4 weeks in bed, unable to do anything. R at 1831. He reported having at least two of these episodes in the past year, during which he would take Vicodin and use a Transcutaneous Electrical Nerve Stimulator (TENS) unit to alleviate pain. R. at 1832-33. He stated that he uses a cane, a TENS unit, back brace, and cold pads to assist with mobility and pain. R. at 1834-37. Mr. Scott also testified that he could not fully bend over due to pain. R. at 1851.
In January 2014, the Board remanded the veteran’s claim to obtain a new examination. R. at 428-32. That same month the veteran was treated at a VA emergency room for back pain due to a flare-up caused by a misstep on a stairwell two days prior. R. at 1788-91.
In January 2015, the veteran underwent the requested examination and reported that he no longer had flare-ups as his pain was constant throughout the day. He reported that pain had increased over the past two years and worsens with activity and sometimes with reaching. R. at 248. He reported difficulty bending, heavy lifting, stooping, tying his shoes, picking up objects from the floor, and prolonged standing and walking. Id. The examiner noted that the veteran’s forward flexion was limited to 45 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 25 degrees. R. at 248-49. The examiner noted objective evidence of pain in the last 10 degrees of forward flexion, extension, and left and right lateral flexion, and in the last 5 degrees of left and right lateral rotation. R. at 249. There was no loss of function or loss of ROM after repetitive use testing and in response to a question regarding repetitive use over time, the doctor stated that he neither supported nor contradicted the veteran’s statements describing functional loss with repetitive use over time or during flare-ups and that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the veteran’s functional ability over time or during flare-ups. R. at 249-50. The examiner noted the veteran’s constant use of a cane and occasional use of a back brace. R. at 254.
In March 2015, the RO granted a 20% evaluation, but no higher, for the service-connected lumbar spine condition. R. at 177-87, 188-92. In April 2016, the Board issued the decision
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currently on appeal, denying entitlement to an evaluation higher than 20% for that same condition. R. at 2-15. This appeal followed.
II. ANALYSIS
Mr. Scott argues that the Board (1) failed to consider functional loss during flare-ups and the provisions of 38 C.F.R. §§ 4.40 and 4.45, (2) provided inadequate reasons or bases for its determination that his lay statements were less probative than the medical evidence of record, and (3) erred when it denied extraschedular referral. In his reply brief, the veteran argues that the Board relied on inadequate VA examinations and remand is required for the Board to obtain a medical examination that complies with Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). Reply Br. at 2-3. The Secretary disputes these contentions and urges the Court to affirm these aspects of the Board decision. Secretary’s Br. at 7-13.
The Board’s determination of the proper disability level to be assigned is a finding of fact, which this Court reviews under the “clearly erroneous” standard. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). “A factual 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.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, this Court may not substitute its judgment for that of the Board on issues of material fact where the Board points to a plausible basis in the record in support of its determination. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As with any finding on a material issue of fact and law presented on the record, the Board must support its degree-of-disability determination with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). In its statement of reasons or bases, the Board must analyze the credibility and probative value of evidence, account for the persuasiveness of evidence, and provide reasons for rejecting 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).
Mr. Scott’s service-connected lumbar spine condition is evaluated as 20% disabling under 38 C.F.R. § 4.71a, diagnostic code (DC) 5242-5237, which pertains to lumbosacral or cervical
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strain and degenerative arthritis of the spine. R. at 184. Under the General Rating Formula for Diseases and Injuries of the Spine, as relevant here, the next higher evaluation of 40% is warranted when there is evidence of forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a 50% evaluation is warranted when there is evidence of unfavorable ankylosis of the entire thoracolumbar spine, and a 100% evaluation is warranted when there is evidence of unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5242, 5237 (2016).
In DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995), the Court held that musculoskeletal DCs based on limitation of motion—such as DC 5242 and 5237—do not subsume the factors listed in §§ 4.40 and 4.45. Thus, when evaluating musculoskeletal disabilities under such DCs, in addition to considering measured limitation of motion, VA must assess functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2016). Moreover, § 4.45 states that pain on movement is a relevant factor and that an evaluation must consider “[i]nstability of station, disturbance of locomotion, [and] interference with sitting, standing and weight-bearing.” 38 C.F.R. § 4.45(f) (2016). Medical opinions addressing the symptoms and severity of musculoskeletal disabilities must take into account these considerations, including during flare-ups, and, to the extent possible, express any functional loss in terms of the degree of additional range-of-motion loss so VA can assign a schedular evaluation that accurately reflects the extent of overall functional loss. See DeLuca, 8 Vet.App. at 206-07. A DeLuca analysis is appropriate when evaluating musculoskeletal disabilities under the general rating formula for the spine. See, e.g., Thompson v. McDonald, 815 F.3d 781, 784 (Fed. Cir. 2016) (observing that, although the relevant portion of § 4.71a addresses the spine and provides for disability evaluations with or without pain, it contains no mention of functional loss as such); Cullen v. Shinseki, 24 Vet.App. 74, 84-86 (2010).
Section 4.40 was considered further in Mitchell, where the Court held that “the plain language of [§ 4.40] is unambiguous that, although pain may cause [] functional loss, pain itself does not constitute functional loss.” 25 Vet.App. at 37. Nevertheless, the Court also stated that, “in the context of examinations evaluating functional loss in the musculoskeletal system under DCs based upon limitation of motion, DeLuca stands for the proposition that when pain is associated with movement, to be adequate for rating purposes an examination must ‘compl[y] with the
6
requirements of § 4.40,'” and that “‘the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [limb] is used repeatedly over a period of time.'” Id. at 43-44 (quoting DeLuca, 8 Vet.App. at 206).
Relevant to the arguments on appeal, the Board found Mr. Scott not entitled to an evaluation higher than 20% for service-connected lumbar spine condition under the General Rating Formula for Diseases and Injuries of the Spine because the evidence of record did not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis. The Board acknowledged evidence of flare-ups and complaints of pain but explained that the evidence did not show that during those flare-ups or complaints the veteran was limited to flexion of 30 degrees or less. R. at 8-9. Later in its decision, the Board stated that it considered the veteran’s statements regarding difficulty with standing, walking, prolonged sitting, bending lifting, climbing stairs, and performing activities of daily living during flare-ups, but determined that “some of the [v]eteran’s lay reports are inconsistent with the other evidence of record” and, thus, less probative than the medical findings of record. R. at 11-12.
Although the Board cited to the aforementioned evidence and to §§ 4.40 and 4.45, it did not conduct a Deluca analysis. The Board focused on whether evidence showed flexion less than 30 degrees and did not consider whether Mr. Scott’s functional limitations were the equivalent of additional ROM loss or equated to higher evaluation criteria. See Deluca, 8 Vet.App. at 206. The Board did not address whether lumbar spine pain interfered with or affected the normal strength, speed, coordination, or endurance of the spine, see 38 C.F.R. § 4.40, nor did it consider whether the veteran’s condition interfered with sitting, standing, or weight-bearing, see 38 C.F.R. § 4.45. Indeed, the evidence of record shows that during flare-ups, the veteran’s activities were restricted as he could not move or perform activities of daily living without assistance and was limited to bed rest. R. at 933, 939, 1172. Moreover, the January 2015 VA examination report reflects the veteran’s reports of increased pain and difficulty bending, heavy lifting, stooping, tying his shoes, picking up objects from the floor, and prolonged standing and walking. R. at 248.
The Board’s failure to adequately discuss this evidence and to consider and apply the pertinent law when determining the appropriate schedular evaluation for the veteran’s lumbar spine condition renders its statement of reasons or bases inadequate. Remand is therefore warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy
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“where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
To the extent that Mr. Scott challenges the adequacy of the VA examinations that the Board relied upon in its decision and argues that the Board provided inadequate reasons or bases for its determination that his lay statements were less probative than the evidence of record, the Court need not consider these arguments at this time. The Court has determined that remand is warranted and the Board will necessarily render a new decision after reassessing all evidence of record, including the VA examinations and the veteran’s lay statements.
Finally, Mr. Scott argues that the Board misapplied the law when it denied extraschedular referral. Appellant’s Br. at 15-19. The Board found extraschedular referral not warranted because all lumbar spine symptoms were adequately contemplated under the rating schedule, including consideration of factors listed in §§ 4.40 and 4.45. R. at 13. Because remand, which is based on the Board’s failure to address favorable evidence of functional impairment as identified in §§ 4.40 and 4.45, may prompt further development and alter the Board’s schedular analysis, extraschedular consideration may subsequently be affected. Therefore, the Court will also remand the issue of extraschedular consideration. See Tucker, 11 Vet.App. at 374.
Insofar as Mr. Scott asserts that the record reasonably raised the issue of extraschedular referral on a collective disabilities basis, Appellant’s Br. at 15-19, Reply Br. at 6-9 (citing Yancy v. McDonald, 27 Vet.App. 484, 495 (2016)), he is free on remand to submit this argument, as well as other arguments and additional evidence, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such argument or evidence submitted. 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.
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III. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the April 27, 2016, Board decision is SET ASIDE and the matter is REMANDED for further development, if necessary, and readjudication consistent with this decision.
DATED: June 20, 2017
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)

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