Veteranclaims’s Blog

August 14, 2017

Single Judge Application; Pain; Range of Motion; Lumbar Spine; DeLuca v. Brown, 8 Vet.App. 202 (1995);

Excerpt from decision below:

“Although the Board found that the appellant experienced pain-free flexion during the examination, this is not true. The examiner noted that the appellant significant pain when performing his ranges of motions of his spine, and that “pain markedly [increased] at 50 degrees” on flexion. R. at 443. The examiner’s finding appears to indicate that the appellant suffered pain on flexion at all degrees, and the pain increased severely at 50 degrees. Further, although the examination evidences significant pain, the examiner did not provide any information about functional loss or additional limitation of
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motion of the lumbar spine as a result of flareups or on repetitive motion testing, rendering the examination inadequate for rating purposes. See DeLuca v. Brown, 8 Vet.App. 202 (1995).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1073
ANDREW W. SIMCOX, JR., APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent
GREENBERG, Judge: The appellant, Andrew W. Simcox, Jr., appeals, through counsel, that part of a December 31, 2015, Board of Veterans’ Appeals (Board) decision that denied a disability rating in excess of 20% prior to August 26, 2008, for a low back disability.1 Record (R.) at 2-17. The appellant argues that the Board clearly erred in failing to award a 40% disability rating for his low back disability, or alternatively, that the Board provided an inadequate statement of reasons or bases for denying a higher disability rating. Appellant’s Brief at 12-22. The appellant also argues that Board failed to provide an adequate statement of reasons or bases for not awarding a separate rating for a painful scar. Id. at 22-25. For the following reason, the Court will vacate that part of the December 31, 2015, decision on appeal, and remand the matter for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative
1 The Board also denied disability ratings in excess of (1) 40% from August 26, 2008, for a low back
disability; (2) 30% from January 4, 2013 to July 9, 2014, for asthma; (3) 10% prior to July 9, 2009, for left lower
extremity radiculopathy; (4) 20% from July 9, 2009, for left lower extremity radiculopathy; (5) 20% for right lower
extremity radiculopathy; (6) 20% for right lower extremity neuropathy; and (7) 20% for left lower extremity
neuropathy. The appellant presents no argument as to these matters and the Court deems them abandoned. See
Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that, where an appellant abandons an issue
or claim, the Court will not address it).
2
Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation
of a special court solely for veterans, and other specified relations such as their widows, is
consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.)
409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real
honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting
alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. §
7254. Accordingly, the statutory command of Congress that a single judge may issue a binding
decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and
unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional
promises to veterans has been of great concern. “By the act concerning invalids, passed in June,
1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose
names are contained in a report previously made by him to congress. If he should refuse to do so,
would the wounded veteran be without remedy? Is it to be contended that where the law in precise
terms, directs the performance of an act, in which an individual is interested, the law is incapable
of securing obedience to its mandate? Is it on account of the character of the person against whom
the complaint is made? Is it to be contended that the heads of departments are not amenable to the
laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in U.S. Army from January 1985 to May 1985, and
October 1986 to November 1990, as a single channel radio operator and motor transport operator.
R. at 3035 (Form DD 214). During service, the appellant was involved in a bus accident, where
he sustained a low back strain. R. at 977, 938. After service, he filed for benefits based on service
connection for a back disability, which was granted in July 1993 with a noncompensable rating.
R. at 3029, 2951-55.
In April 2007, the appellant filed for an increased rating for his back condition. R. at 2386-
88. In July 2007, the appellant underwent a VA spine examination. R. at 40-44. During the
examination, the doctor noted the appellant’s reports of 4 flareups within the last 2 months, 1
causing him to be bedridden, but that overall flareups had decreased since he began pain
management in February 2007. R. at 441. The examiner performed range-of-motion testing noting
3
that the appellant “has significant pain when performing ranges of motion of his spine.” R. at 443.
The examiner then found:
Flexion is 0-58 degrees with pain markedly increasing at 50 degrees and quite
severe at the end point of 58. Extension is 0-15 degrees with pain increasing at 10
degrees. Right and left lateral bending 0-20 degrees with pain increasing in each
case at 15 degrees. Rotation is 0-30 degrees to the right with end point pain, 0-35
degrees to the left with end point pain. After these ranges were completed the
veteran was in more pain and he actually did not have to request that I not perform
repetitive motion as the examiner had already decided not to but the veteran
confirmed that that would not be a good idea and repetitive motion was not done
for that reason.
R. at 443.
In December 2015, the Board issued the decision currently on appeal, denying a rating in
excess of 20% for a low back disability prior to August 26, 2008. R. at 18. The Board relied on
the July 2007 VA examination, finding that the examination evidenced that the appellant
“demonstrated pain-free forward flexion to well beyond the limit for a rating in excess of 20[%].”
R. at 12.
The Court concludes that the Board provided an inadequate statement of reasons or bases
for relying on the July 2007 VA examination. See 38 U.S.C. § 7104(d)(1) (“Each decision of the
Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons
or bases for those findings and conclusions, on all material issues of fact and law presented in the
record.”); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (finding that Congress mandated, by
statute, that the Board provide a written statement of reasons or bases for its conclusions that is
adequate to enable the appellant to understand the precise basis for the Board’s decision and to
facilitate review in this Court). Not only did the Board misstate the findings of the July 2007 VA
examiner, the examination appears to be incomplete because of the amount of pain the appellant
was objectively experiencing during the examination. See R. at 12, 440-44. Although the Board
found that the appellant experienced pain-free flexion during the examination, this is not true. The
examiner noted that the appellant significant pain when performing his ranges of motions of his
spine, and that “pain markedly [increased] at 50 degrees” on flexion. R. at 443. The examiner’s
finding appears to indicate that the appellant suffered pain on flexion at all degrees, and the pain
increased severely at 50 degrees. Further, although the examination evidences significant pain,
the examiner did not provide any information about functional loss or additional limitation of
4
motion of the lumbar spine as a result of flareups or on repetitive motion testing, rendering the
examination inadequate for rating purposes. See DeLuca v. Brown, 8 Vet.App. 202 (1995).
Remand is required for the Board to provide an adequate statement of reasons or bases for its
determination of whether the appellant is entitled to a rating in excess of 20% prior to August 26,
2008. If the medical evidence is insufficient to make a decision on the matter, the Board should
obtain a medical opinion that addresses the severity of the appellant’s back disability for the
relevant period. See 38 U.S.C. § 5103A(d).
Because the Court is remanding the appellant’s claim, it will not address the appellant’s
remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant
may present, and the Board must consider, any additional evidence and arguments, including
whether the appellant is entitled to a separate rating for painful scars. See Kay v. Principi,
16 Vet.App. 529, 534 (2002); see also Appellant’s Brief at 22-25. This matter is to be provided
expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n.
(“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper
objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly
ruined, by a long one.”).
Based on the foregoing, that part of the December 31, 2015, Board decision on appeal is
VACATED and the matter is REMANDED for readjudication.
DATED: July 28, 2017
Copies to:
Barton F. Stichman, Esq.
VA General Counsel (027)

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