Veteranclaims’s Blog

August 11, 2011

Panel Application, Prejudicial Error, Arneson v. Shinseki, 24 Vet.App.379,388-89(2011)

Filed under: Uncategorized — Tags: , , — veteranclaims @ 2:53 pm

Excerpt from decision below:
“Arneson v. Shinseki, 24 Vet.App.379,388-89(2011)(finding prejudice where error could have made difference in outcome).”

NO. 09-2873
On Appeal from the Board of Veterans’ Appeals
(Decided August 4, 2011)
John Thomas Westermeier, of Reston, Virginia, was on the pleadings for the
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General
Counsel; Jeffrey J.
Schueler and Carolyn F. Washington, Deputy Assistant General Counsels, and
Kristen D. King-
Holland, all of Washington, D.C., were on the pleadings for the appellee.

Before KASOLD, Chief Judge, and DAVIS and HOLDAWAY, Judges.

KASOLD, Chief Judge: Veteran Russell W. Burton appeals through counsel an
April 6,
2009, Board of Veterans’ Appeals (Board) decision that denied entitlement
to an initial disability
rating for residuals of a left-shoulder injury with surgical repair in
excess of 0% from August 28 to
December 1, 2002, 10% from December 2, 2002, to May 22, 2003, 10% from
October 1, 2003, to
March 8, 2004, 20% from March 9, 2004, to April 20, 2005, and 10% from
April 21, 2005, onward.
On March 29, 2011, the Court issued a single-judge memorandum decision
affirming the Board
decision. On April 18, Mr. Burton filed a motion for a panel decision. On
May 9, the Court granted
Mr. Burton’s motion for a panel decision and withdrew the March 29
memorandum decision. For
the reasons that follow, the Board decision will be in part affirmed, and
in part set aside and the
matter remanded for further adjudication.

Mr. Burton served on active duty in the U.S. Army from February 1995 to
February 1999.
The record on appeal reflects that he complained of left-shoulder pain
during service and underwent
surgery for repair of a superior labrale anterior-posterior (SLAP) lesion1
in September 1996.
In August 2002, Mr. Burton filed for benefits for a left-shoulder injury.
In January 2003, the
VA regional office (RO) granted service connection for residuals of a left-
shoulder injury with
surgical repair and assigned a noncompensable rating, effective August 28,
2002. The decision was
based primarily on a November 2002 VA medical examination report that the
RO characterized as
finding that Mr. Burton had a “full range of motion with no pain.” Record (
R.) at 1079. In June
2003, the RO awarded a temporary 100% rating, effective May 23, 2003,
because Mr. Burton
underwent arthroscopic left-shoulder surgery for further repair of the
SLAP lesion. In November
2003, the RO determined that the period of temporary total disability had
ended, and reinstated a
noncompensable rating, effective October 1, 2003. In June 2005, the RO
awarded a 10% rating,
effective March 9, 2004, based primarily on a March 2004 VA examination
that found pain on
motion and some functional loss with repetition. In June 2006, after Mr.
Burton appealed his ratings
to the Board, the Board remanded the matter for further development.
In October 2008, based on a reexamination of the medical evidence, the RO (
1) maintained
a noncompensable rating, effective August 28, 2002, (2) increased the
noncompensable rating to a
10% rating, effective December 2, 2002, (3) maintained a 100% rating,
effective May 23, 2003, (4)
increased the noncompensable rating to 10%, effective October 1, 2003, (5)
increased a 10% rating
to a 20% rating, effective March 9, 2004, and (6) awarded a 10% rating,
effective April 21, 2005.
The Board decision on appeal affirmed these ratings, and this appeal
Mr. Burton asserts that the Board erred by failing to (1) address
adequately 38 C.F.R.
§§ 4.40, 4.59, and painful motion generally, or otherwise assign a
minimum compensable rating for
“SLAP lesion” is defined as an “injury involving the superior glenoid
labrum and attachment of the biceps brachii,
extending from anterior to posterior.” DORLAND’S ILLUSTRATED
MEDICALDICTIONARY 1040 (31st ed. 2007) [hereinafter

his actually painful joints, see 38 C.F.R. § 4.59 (2011) (“It is the
intention to recognize actually
painful, unstable, or malaligned joints, due to healed injury, as entitled
to at least the minimum
compensable rating for the joint.”), and (2) assign two separate 20%
ratings for his left-shoulder
injury, based on his limitations on abduction and flexion.
In his initial brief, the Secretary disputed Mr. Burton’s first contention,
arguing that § 4.59
was applicable only to arthritis-related claims. See 38 C.F.R. § 4.59 (
section begins: “With anyform
of arthritis . . . .”). However, his supplemental brief cites VA Fast
Letter 04-22 (Oct. 1, 2004) (“As
always, when evaluating knee function, . . . [§] 4.59 must be considered
.”) and acknowledges that
§ 4.59 can apply in non-arthritis contexts. Nevertheless, the Secretary
still seeks affirmance of the
Board decision, arguing that (1) the application of § 4.59 would not have
altered the Board’s
determinations, (2) Mr. Burton’s request for two separate ratings for one
shoulder disability
contravenes the Court’s holding in Cullen v. Shinseki, 24 Vet.App. 74, 84 (
2010), and (3) the Board
did not otherwise err.
Mr. Burton’s motion for panel decision was granted – and the Court’s
March 29, 2011,
single-judge memorandum decision withdrawn – to resolve the parties’
dispute and clarify the law
as to whether § 4.59 is applicable only to claims involving arthritis.
Although the Secretary in his
supplemental brief now agrees that § 4.59 is not so limited, a panel
decision remains warranted. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (panel decision required
if case clarifies existing
rule of law). Compare, e.g., Wesenick v. Nicholson, 20 Vet.App. 144 (2005) (
table) (“Because the
appellant has not been diagnosed with arthritis, 38 C.F.R. § 4.59 has no
application to his claim.”),
with Abbey v. Principi, 18 Vet.App. 13 (2001) (table) (remanding case for
Board to address § 4.59
in non-arthritis claim).
A. 38 C.F.R. § 4.59
1. Law
The “interpretation of a . . . regulation is a question of law” that we ”
review de novo.” Lane
v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003). However, substantial
deference is granted to the
Secretary’s interpretation of his own regulation so long as it is not
inconsistent with the regulation

or otherwise plainly erroneous. Smith v. Nicholson, 451 F.3d 1344, 1349-
50 (Fed. Cir. 2006) (citing
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Further,
although “post hoc
rationalizations” advanced for the first time on appeal are not entitled
to deference, we note that the
Secretary’s interpretation of § 4.59 was recorded in a Fast Letter and
not advanced for the first time
on appeal. Hickson v. Shinseki, 23 Vet.App. 394, 400 (2010). As discussed
below, we find that the
Secretary’s interpretation of § 4.59 is not inconsistent with the
regulation or otherwise plainly
erroneous. See Smith, supra.
We begin with the language of the regulation, see Lengerich v. Dep’t of
Interior, 454 F.3d
1367, 1370 (Fed. Cir. 2006) (citing Bowles, 325 U.S. at 414-15 (focusing
on the “plain words of the
regulation” to ascertain the meaningof the regulation)), which, when read
as a whole, reasonablycan
be applied beyond circumstances of pain associated only with arthritis.
Section 4.59 is entitled
“Painful motion,” and states in full:
With any form of arthritis, painful motion is an important factor of
disability, the facial expression, wincing, etc., on pressure or
manipulation, should be carefully noted and definitely related to
affected joints. Muscle spasm will greatly assist the identification.
Sciatic neuritis is not uncommonly caused by arthritis of the spine.
The intent of the schedule is to recognize painful motion with joint or
periarticular pathology as productive of disability. It is the intention
to recognize actually painful, unstable, or malaligned joints, due to
healed injury, as entitled to at least the minimum compensable rating
for the joint. Crepitation either in the soft tissues such as the tendons
or ligaments, or crepitation within the joint structures should be noted
carefully as points of contact which are diseased. Flexion elicits such
manifestations. The joints involved should be tested for pain on both
active and passive motion, in weight-bearing and nonweight-bearing
and, if possible, with the range of the opposite undamaged joint.
Examining the first sentence out of context can lead one to consider that
the regulation might
apply only to the evaluation of arthritis claims. However, a proper
interpretation of a regulation
“examinesandreconcilesthetext oftheentireregulation, not
simplyisolatedsentences.” Reflectone,
Inc. v. Dalton, 60 F.3d 1572, 1577-78 (Fed. Cir. 1995) (citing Beecham v.
United States, 511 U.S.
368, 372 (1994)). In the eight-sentence regulation, arthritis is
explicitly mentioned only in the first
and third sentences and is not the subject of the majority of the
regulation, which, inter alia,
comments on the schedule’s intent as to healed injury and malaligned
joints (fifth sentence), how to

note crepitation2
in the soft tissues (sixth sentence), and how to test joints for pain (
eighth sentence).
Rather, examining the regulation as a whole, the majority of the
regulation provides guidance for
noting, evaluating, and rating joint pain, and that guidance is devoid of
anyrequirement that the pain
be arthritis related. Cf. DeLuca v. Brown, 8 Vet.App. 202, 207 (1995) (
rejecting interpretation that
38 C.F.R. § 4.45 is limited to muscle and nerve conditions because, inter
alia, plain language does
“not refer solely to muscle and nerve conditions”).
Further, although the title of § 4.59 is not dispositive as to its scope, ”
section headings are
tools available for the resolution of a doubt about the meaning of a
statute” or regulation. Fla. Dep’t
of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (
internal quotation marks omitted);
see DeLuca, 8 Vet.App. at 207 (looking to “the title of the regulation” to
determine scope of 38
C.F.R. § 4.45). Here, the title – “Painful motion” – reflects the
subject matter of the regulation in
general and implies no limitation to arthritis claims. Notably, the
Secretary has used the term
“arthritis” in the title of regulations that deal exclusively with
arthritis – see 38 C.F.R. § 4.58
(“Arthritis due to strain”) – and did not do so for § 4.59, even though
§ 4.58 and § 4.59 were
promulgated together. See 29 Fed. Reg. 6718, 6725 (May 22, 1964) (adding
the 1945 rating
schedule to the Code of Federal Regulations); cf. DeLuca, 8 Vet.App. at
207 (rejecting interpretation
that 38 C.F.R. § 4.45 is limited to muscle and nerve conditions because,
inter alia, title does not refer
to muscles or nerves though other regulations refer thereto).
Of course, we do not find the introductory phrase regarding arthritis
insignificant or
superfluous. See TRWInc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a
cardinal principle of statutory
construction that a statute ought, upon the whole, to be so construed that,
if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or insignificant.” (
internal quotation marks
omitted)); Savage v. Shinseki, 24 Vet.App. 259, 265 (2011) (citing Black &
Decker Corp. v. Comm’r
of Internal Revenue, 986 F.2d 60, 64 (4th Cir. 1993) (“Regulations, like
statutes, are interpreted
according to canons of construction.”)). Rather, it is a reasonable
interpretation from examining the
regulation as a whole that the introductoryphrase defines the subject of
the next three sentences, and
does not limit the application of all eight sentences. Overall, the first
portion of the regulation
“Crepitation” is defined as “a sound like that made by throwing salt into
a fire . . . the noise made by rubbing together
the ends of a fractured bone.” DORLAND’S at 437.

regards painful motion involved with arthritis in particular. The
remaining portion comments on
joint pain in general, including pain caused by healed injury, malaligned
joints, and crepitation; and
the phrase introducing the first portion is neither insignificant nor
limiting to the regulation.
Accordingly, the Secretary’s interpretation of the scope of § 4.59 –
that its application is not
limited to arthritis claims – is not inconsistent with the regulation or
otherwise plainly erroneous.
See Smith, supra. When § 4.59 is raised by the claimant or reasonably
raised by the record, even in
non-arthritis contexts, the Board should address its applicability. See
Robinson v. Peake, 21
Vet.App. 545, 552 (2008) (Board is required to consider all issues raised
either by the claimant or
reasonably by the record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1355 (Fed. Cir. 2009);
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (applicable provisions
of law and regulation
should be addressed when they are made “potentially applicable through the
assertions and issues
raised in the record”).
2. Application to Fact
Mr. Burton contends that the Board erred in failing to address adequately
§§ 4.40, 4.59, and
painful motion generally,orotherwiseassign a minimum compensable ratingfor
his actuallypainful
joints as required by§ 4.59. The Secretaryargues that (1) the Board
adequatelyaddressed § 4.40 and
painful motion generally, and (2) no prejudice was caused by the Board’s
failure to apply § 4.59
because the Board adequately addressed Mr. Burton’s joint pain on motion
for each time period.
With the exception of the period from August 28 to December 1, 2002, the
record supports
the Secretary’s argument. The Board referenced 38 C.F.R. § 4.40 and pain
on motion throughout its
decision and Mr. Burton fails to specifically demonstrate error in this
regard. See Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of
demonstrating error on appeal).
Further, although the Board did not explicitly address § 4.59, the Board
reasonably addressed joint
pain and assigned a compensable rating with regard to the time periods
other than August 28 to
December 1, 2002, and Mr. Burton otherwise fails to demonstrate prejudice.
See Shinseki v.
Sanders, 129 S. Ct. 1696, 1706 (2009) (appellant bears burden of
demonstrating prejudice on
appeal); Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand
unnecessary in “the absence of
demonstrated prejudice”).

On the other hand, the record supports Mr. Burton’s argument that the
Board failedto address
adequately §§ 4.40, 4.59, and painful motion generally with regard to
the period of August 28 to
December 1, 2002. Although the Board noted 38 C.F.R. § 4.40 and found
that Mr. Burton exhibited
no “pain on movement of [his] left shoulder” (R. at 12), it failed to
address a September 2002 VA
medical examiner’s assessment that Mr. Burton was “able to hold [his] arm
behind [his] head while
explaining pain” and the examiner’s diagnosis of shoulder pain, which
reasonably raises the
applicability of § 4.59. R. at 1171. Further, although the Board noted
that the November 2002 VA
medicalexaminer’s report foundfull rangeofmotion, thereport merelylisted
complaints of pain on motion and then recorded his range of motion without
addressing whether he
had any actual pain on motion. DeLuca, 8 Vet.App. at 205-06 (rejecting
Board’s reliance on
examination that “merelyrecorded the veteran’s range of motion” without
addressing functional loss
due to pain upon motion). The Board’s failure to discuss adequately these
potentially favorable or
incomplete reports, in conjunction with the failure to apply § 4.59,
frustrate judicial review of the
Board’s finding of no pain on movement. See Allday v. Brown, 7 Vet.App.
517, 527 (1995) (holding
that the Board’s statement “must be adequate to enable claimant to
understand the precise basis for
the Board’s decision, as well as to facilitate review in this Court”); see
also Thompson v. Gober, 14
Vet.App. 187, 188 (2000) (Board must provide an adequate statement of
reasons or bases “for its
rejection of any material evidence favorable to the claimant”). Because
the Board provided an
inadequate statement of reasons or bases and the application of § 4.59
may alter the Board’s
determination that a compensable rating is unwarranted for this period,
remand is warranted. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “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”); see also
Arneson v. Shinseki, 24 Vet.App.379,388-89(2011)(finding prejudice where error could have made difference in outcome).

B. Two Separate Disability Ratings
Although the Board did not address the possibility that Mr. Burton could
be entitled to two separate disability ratings for the abduction and flexion limitations of his left shoulder, the record on appeal does not reflect that Mr. Burton raised this argument to the Board. See Robinson, 21 Vet.App. at 552. Moreover, although Mr. Burton has both abduction and
flexion limitations, these

limitations arise from one disability, and the law does not permit
separate ratings under such
circumstances. See 38 C.F.R. § 4.14 (“The evaluation of the same
disability under various diagnoses
is to be avoided.”); see also Boggs v. Peake, 520 F.3d 1330, 1337 (Fed.
Cir. 2008) (claimant “cannot
be compensated more than once for the same disability”); Cullen, 24 Vet.
App. at 84 (Court rejected
argument that one disability manifesting in multiple symptoms could
receive two separate ratings
within a particular diagnostic code). Accordingly, it was not error for
the Board not to address
separate disability ratings, as the issue was not reasonably raised. See
Robinson, supra.

Accordingly, that part of the April 6, 2009, Board decision denying an
initial rating in excess
of 0% from August 28 to December 1, 2002, is SET ASIDE and the
matter REMANDED for further
adjudication. The remainder of the decision is AFFIRMED.

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