Veteranclaims’s Blog

October 25, 2011

Single Judge Application, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011); FED. R. EVID. 803(7); Evidence Against If Ordinarily Would be Recorded

Filed under: Uncategorized — veteranclaims @ 8:39 pm

Excerpt from decision below:
“Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made)”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-4769
JOANN L. VOIGHT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KASOLD, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

KASOLD, Chief Judge: Veteran Joann L. Voight appeals through counsel a
September 9, 2009, decision of the Board of Veterans’ Appeals (Board) that
denied a higher initial
disability rating for residuals of a lumbosacral (back) injury. Ms. Voight
argues that (1) the Board
failed to provide an adequate statement of its reasons or bases for
denying an initial disability rating
in excess of 20% based upon Deluca v. Brown, 8 Vet.App. 202 (1995) (
finding that an examination
that “merely recorded the veteran’s range of motion”without considering
the functional loss due to
pain upon motion was inadequate), (2) the medical examinations relied on
by the Board were
inadequate for assigning her disability compensation rating, and (3) the
Board failed to provide an
adequate statement of its reasons or bases for not referring her claim for
extraschedular
consideration. The Secretary disputes these arguments. Single-judge
disposition is appropriate.
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set
forth below, the Board’s
decision will be in part affirmed, and in part set aside and the matter
remanded for further
adjudication.
Ms. Voight’s argument that the Board failed to provide an adequate
statement of its reasons
or bases for denying an initial disability rating in excess of 20% for her
back injury based upon
DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995) is not supported by the
record. Ms. Voight’s back

condition is currently rated as an injury or disease of the spine and a
disability rating is assigned
based upon her range of motion. See 38 C.F.R. § 4.71a, Diagnostic Code (
DC) 5237 (2010)
(providing a 20% disability rating when forward flexion of the spine is
greater than 30 degrees and
less than 60 degrees and a 40% rating when forward flexion is 30 degrees
or less). To establish a
40% rating under DC 5237 for thoracolumbar spine, the forward flexion must
be 30 degrees or less
or have favorable ankylosis of the entire thoracolumbar spine. The Board
explained that Ms.
Voight’s 70 to 90 degrees of flexion in her back did not meet the criteria
for her currently assigned
20% disability rating under DC 5237, but recognized also that weakened
movement, excess
fatigability, and pain resulting in additional functional impairment could
support a higher disability
rating under DeLuca, supra, and 38 C.F.R. §§ 4.40, 4.45. Reviewing the
medical evidence from
August 2004, the Board found that in the most recent May 2007, VA
examination, Ms. Voight had
(1) lateral motions of 20 degrees bilaterally with back pain, (2) 70
degrees flexion and 15 degrees
of extension with some pain, (3) no significant spasms, and (4) some back
pain after 3 repetitions,
however, with no loss of motion. Record (R.) at 8; see also R. at 118. The
May 2007 VA medical
examination report specifically referred to the DeLuca procedure and found
no loss of motion.
In addition, the May 2007 VA medical examination diagnosed Ms. Voight with
herniated
disc disease, and the Board considered a higher initial rating under the
intervertebral disc syndrome
code section. See 38 C.F.R. § 4.71a, DC 5243(2011) (providing a 40%
disability rating for
incapacitating back episodes lasting at least 4 weeks but less than 6
weeks during the last 12
months). With regard to a higher rating under DC 5243, the Board found Ms.
Voight’s testimony
– that she experienced monthlyincapacitatingbackepisodes lasting from a
few hours to four weeks–
not credible. Because Ms. Voight sought treatment for her back condition
at least once a month and
because none of the treatment reports mentioned back flare-ups, the Board
determined that the
absence of any flareup treatment records outweighed her testimony
concerning the frequency and
duration of her back episodes. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made); see also 38 C.F.R. § 4.71a, DC 5243 (2011) (requiring
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incapacitating episodes of 4 to 6 weeks to warrant a 40% disability
rating).
Based on the record on appeal, the Board’s findings that a disability
rating higher than 20%
for residuals of a back condition under either DC 5237 or DC 5243, with
consideration of the
DeLuca factors, was not warranted is plausible and not clearly erroneous.
See Johnston v. Brown,
10 Vet.App. 80, 84 (1997) (Board’s decision regarding the degree of
disability under the rating
schedule is a finding of fact subject to the “clearly erroneous” standard
of review); Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990) (“‘A 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
convictionthatamistakehasbeen committed.'”(quoting United States v.U.S.
GypsumCo.,333U.S.
364, 395 (1948))). Moreover, the Board considered the May2007 VA
examination that specifically
mentioned and assessed the DeLuca procedure and found no loss of motion,
and Ms. Voight points
to no evidence in the record suggesting that anypain associated with her
forward flexion movements
limited her functionality to 30 degrees or less as required for a 40%
disability rating, a rating that
requires forward flexion to be limited to 30 degrees or less. See Hilkert
v. West, 12 Vet.App. 145,
151 (1999) (en banc) (appellant bears burden of demonstrating error on
appeal). Overall the Board’s
finding of a 20% disability rating is understandable and facilitative of
judicial review. See Allday
v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate
to enable a claimant to
understand the precise basis for the Board’s decision, as well as to
facilitate review in this Court”).
Similarly, the record of proceedings does not support Ms. Voight’s
argument that the VA
medical examinations are inadequate to evaluate the DeLuca factors because
none explicitly state
the point at which she experiences pain during movement. Although the more
detailed, the better
the report, the Board’s determination that a report is adequate may be
reversed only if it is clearly
erroneous. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (Board’s
determination as to adequacy
of medical examination is a question of fact); Gilbert, supra. Here, the
2007 VA medical
examination report noted application of the DeLuca factors and that Ms.
Voight had forward flexion
of 70 degrees well beyond the 30 degrees or less required for a 40%
disability rating. Although pain
is noted, the report reflects the examiner’s observation that there was no
loss of motion due to pain,
and, as noted above, Ms. Voight points to no evidence in the record
indicating that her forward
flexion movements were limited by pain to a functionality of 30 degrees or
less as required for a 40%
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disability rating. In sum, she fails to demonstrate that the Board’s
finding that the medical
examination reports in the record were adequate or that the Board’s
reliance on these reports was
clearly erroneous. See Hilkert, supra.; see also D’Aries, 22 Vet.App. at
103-104 (holding that a
medical opinion is adequate where it is based upon the veteran’s medical
history, examinations, and
also describes the disability in sufficient detail, and holding that
whether a medical opinion is
adequate is a finding of fact, which the Court reviews for clear error);
Gilbert, supra.
On the other hand, Ms. Voight’s argument that the Board failed to provide
an adequate
statement of reasons or bases for the failure to refer her claim for
extraschedular consideration is
supported by the record. The Board denied the referral of an
extraschedular rating without
addressing the evidence of record indicating interference with employment.
Ms. Voight testified in
November 2007 that she (1) needed medication to perform her job, (2)
frequently had to move
around at work because of her back, and (3) went to work bent over and
used an ice pack at work
to control her back pain. In addition, Ms. Voight’s mother submitted a
letter stating that her daughter
went to work with back pain and often she was unable to stand erect.
Although the Board
determined that referral for an extraschedular rating was not warranted
because the schedular rating
was adequate, such a finding still must be supported by an adequate
statement of reasons or bases
that explains whythe schedular rating is adequate. See Thun v. Peake, 22
Vet.App. 111, 115 (2009).
This necessarilyincludes a discussion and assessment of whether a
disability or its symptomatology
is so severe that it prevents the veteran from working, and an explanation
as to whether and why
such interference with work is of the same degree and nature as
contemplated by the schedular
rating. See Barringer v. Peake, 22 Vet.App. 242, 244 (2008) (“As with all
its decisions, the Board
must provideanadequatestatementofreasons orbasesforthisdetermination”);
Thompsonv.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”).
On remand, Ms. Voight may present, and the Board must consider any
additional evidence
and argument in support of the matters remanded. See Kay v. Principi, 16
Vet.App. 529, 534 (2002).
These matters are to be provided expeditious treatment on remand. See 38 U.
S.C. § 7112.
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Upon consideration of the foregoing, that part of the September 9, 2009,
decision addressing extraschedular consideration is SET ASIDE,
and the matter is REMANDED for further adjudication,
and the remainder of the decision is AFFIRMED.
DATED: October 14, 2011
Copies to:
Michael A. Leonard, Esq.
VA General Counsel (027)
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