Veteranclaims’s Blog

November 29, 2017

Single Judge Application; radiculopathy; transitory symptoms; failure to discuss favorable findings; Caluza, 7 Vet.App. at 506;

Excerpt from decision below:

“The Board’s reasons or bases for denying Mr. Devins a left lower extremity radiculopathy evaluation in excess of 10% prior to January 30, 2015, are inadequate in two respects. First, in finding that the veteran’s neurologic symptoms during that period were “transitory” and therefore mild, the Board erroneously stated that, “from April 2007 through January 2009, the [v]eteran made no report of any left lower extremity radiculopathy symptomatology and examiners failed to note any evidence of the condition.” R. at 12. However, at a July 2007 VA contract examination, the veteran complained of constant, severe low back pain that radiated to his hips, preventing him from sitting or standing for prolonged periods and causing sleeplessness and difficulties driving
6
and taking care of his children. R. at 2673. Likewise, in August 2008, he complained to a private physician of left sciatic nerve pain. R. at 455. The Board did not discuss these documents in its decision and, to the extent that they contradict the Board’s finding that the veteran’s The Board’s reasons or bases for denying Mr. Devins a left lower extremity radiculopathy evaluation in excess of 10% prior to January 30, 2015, are inadequate in two respects. First, in finding that the veteran’s neurologic symptoms during that period were “transitory” and therefore mild, the Board erroneously stated that, “from April 2007 through January 2009, the [v]eteran made no report of any left lower extremity radiculopathy symptomatology and examiners failed to note any evidence of the condition.” R. at 12. However, at a July 2007 VA contract examination, the veteran complained of constant, severe low back pain that radiated to his hips, preventing him from sitting or standing for prolonged periods and causing sleeplessness and difficulties driving
6
and taking care of his children. R. at 2673. Likewise, in August 2008, he complained to a private physician of left sciatic nerve pain. R. at 455. The Board did not discuss these documents in its decision and, to the extent that they contradict the Board’s finding that the veteran’s radiculopathy symptoms were not present or were only mild from April 2007 to January 2009, they constitute favorable evidence that the Board was required to address. See Caluza, 7 Vet.App. at 506. The Board’s failure to do so prevents Mr. Devins from understanding the precise basis for its implicit rejection of that evidence and frustrates judicial review of the Board’s assessment of the probative value of that potentially favorable evidence. See Gilbert, 1 Vet.App. at 57.
Second, the Board did not adequately account for evidence of “moderate” radiculopathy
symptoms prior to January 2015. Although the December 2012 VA examiner marked boxes indicating that Mr. Devins had “Moderate” pain, paresthesia and/or dysesthesia, and numbness of the left lower extremity, R. at 751-52, the Board did not mention the examiner’s characterization of those neurologic symptoms when assessing the severity of the veteran’s left lower extremity radiculopathy prior to January 2015, R. at 10. This omission is particularly glaring in light of the Board’s decision to award a higher 20% evaluation since January 30, 2015, based on the January 2015 VA examiner’s characterization of the veteran’s symptoms at that time as moderate, in which the January 2015 VA examiner marked even fewer “Moderate” symptoms checkboxes on the disability benefits questionnaire. Compare R. at 163 (January 2015 VA examination report reflecting “Moderate” left lower extremity paresthesia and/or dysesthesia only), with R. at 751-52(December 2012 VA examination report reflecting “Moderate” left lower extremity pain, paresthesia and/or dysesthesia, and numbness); see R. at 13 (awarding a 20% evaluation since January 30, 2015, because the January 2015 VA examiner indicated that the veteran’s left lower extremity radiculopathy “was productive of moderate symptomatology, specifically moderate paresthesias and/or dysesthesias”). The Board’s failure to resolve this apparent inconsistency in its treatment of the December 2012 and January 2015 VA examination reports, as well as its failure to discuss the potentially favorable findings of the December 2012 examiner, further frustrates judicial review. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57. symptoms were not present or were only mild from April 2007 to January 2009, they constitute favorable evidence that the Board was required to address. See Caluza, 7 Vet.App. at 506. The Board’s failure to do so prevents Mr. Devins from understanding the precise basis for its implicit rejection of that evidence and frustrates judicial review of the Board’s assessment of the probative value of that potentially favorable evidence. See Gilbert, 1 Vet.App. at 57.
Second, the Board did not adequately account for evidence of “moderate” radiculopathy
symptoms prior to January 2015. Although the December 2012 VA examiner marked boxes indicating that Mr. Devins had “Moderate” pain, paresthesia and/or dysesthesia, and numbness of the left lower extremity, R. at 751-52, the Board did not mention the examiner’s characterization of those neurologic symptoms when assessing the severity of the veteran’s left lower extremity radiculopathy prior to January 2015, R. at 10. This omission is particularly glaring in light of the Board’s decision to award a higher 20% evaluation since January 30, 2015, based on the January 2015 VA examiner’s characterization of the veteran’s symptoms at that time as moderate, in which the January 2015 VA examiner marked even fewer “Moderate” symptoms checkboxes on the disability benefits questionnaire. Compare R. at 163 (January 2015 VA examination report reflecting “Moderate” left lower extremity paresthesia and/or dysesthesia only), with R. at 751-52(December 2012 VA examination report reflecting “Moderate” left lower extremity pain, paresthesia and/or dysesthesia, and numbness); see R. at 13 (awarding a 20% evaluation since January 30, 2015, because the January 2015 VA examiner indicated that the veteran’s left lower extremity radiculopathy “was productive of moderate symptomatology, specifically moderate paresthesias and/or dysesthesias”). The Board’s failure to resolve this apparent inconsistency in its treatment of the December 2012 and January 2015 VA examination reports, as well as its failure to discuss the potentially favorable findings of the December 2012 examiner, further frustrates judicial review. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.

========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-3140
JOSEPH D. DEVINS, 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 Joseph D. Devins appeals through counsel an August 3, 2016,
Board of Veterans’ Appeals (Board) decision granting entitlement to a separate 10% disability evaluation, but no higher, for left lower extremity radiculopathy prior to January 30, 2015. 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 portion of the August 2016 Board decision denying a left lower extremity radiculopathy evaluation in excess of 10% prior to January 30, 2015, and remand that matter for readjudication consistent with this decision.
1 The Board also granted a 20% evaluation, but no higher, for left lower extremity radiculopathy since January
30, 2015. R. at 13-16. Because the veteran does not challenge that aspect of the Board decision, the appeal of that
issue will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review
the merits of an issue not argued on appeal and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App.
45, 48 (2014) (same). In addition, inasmuch as the Board’s award of a 10% left lower extremity radiculopathy
evaluation prior to January 30, 2015, is favorable to the veteran, the Court will not disturb it. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable to a claimant
made by the Board pursuant to its statutory authority.”).
2
I. FACTS
Mr. Devins served on active duty in the U.S. Army from July 1997 to November 2004. R.
at 1195. In July 2004, prior to separation from service, he filed a claim for service connection for,
inter alia, a low back disability, R. at 2954-64, which was granted by a VA regional office (RO)
in December 2004 and assigned a 10% evaluation, R. at 2925-32. He did not appeal that decision
and it became final.
In March 2007, Mr. Devins requested an increased low back evaluation, R. at 2732; see R.
at 2600, which was denied by the RO in September 2007, R. at 2597-603. The veteran timely
disagreed with that decision in May 2008, R. at 2595-96; the RO issued a Statement of the Case
(SOC) continuing the 10% low back evaluation in February 2009, R. at 2486-2509; and he
perfected an appeal to the Board in March 2010, R. at 1987-88. Private medical records from
February to May 2007 do not reflect complaints of radicular symptoms, see, e.g., R. at 453-72,
2712-20, but between July 2007 and January 2010, the veteran repeatedly complained of low back
pain radiating to the left lower extremity, see, e.g., R. at 2673 (July 2007); 455 (August 2008);
438, 2107 (February 2009); 313 (October 2009); 2465-66 (November 2009); 1910, 1920 (January
2010).
Mr. Devins was afforded a VA spine examination later in March 2010 and reported that he
had undergone a discectomy the month before that had alleviated some of his back pain, including
the radiculopathy to the left lower extremity. R. at 845. He also stated that he had last worked in
2006 as a police officer, that he stopped working when he lost his security clearance due to
financial problems, and that his back problem had not caused any limitations when he was
working. R. at 846. The examiner diagnosed chronic low back pain associated with degenerative
disc disease of the lumbar spine, status post discectomy with no residual radiculopathy. R. at 846.
At a March 2011 Board hearing, Mr. Devins testified that the discectomy alleviated some
pain in his left leg, but that his low back pain still persisted. R. at 1701. In June 2011, the Board
remanded the low back claim to obtain a contemporaneous VA examination to assess the severity
of that condition. R. at 1649-53.
The ordered examination took place the following month. R. at 782-86. Although Mr.
Devins continued to report low back pain with flare-ups that caused severe functional impairment,
he denied numbness, paresthesia, and leg weakness and motor and sensory tests were normal. R.
3
at 783-85. The examiner did not diagnose a radiculopathy or any other neurologic disability. R.
at 786.
In November 2012, the Board denied increased staged low back evaluations. R. at 1588-
1603. In the “Introduction” portion of the decision, the Board found that the issue of entitlement
to a total disability evaluation based on individual unemployability (TDIU) had not been
reasonably raised by the record because, although the record contained evidence that the veteran
was unemployed, that evidence reflected that his unemployment was the result of “a security
clearance problem.” R. at 1589-90. The Board also found, however, that the record reasonably
raised the issue of entitlement to a separate evaluation for left lower extremity radiculopathy
associated with the service-connected low back disability and remanded that issue for further
development, including a VA peripheral nerves examination. R. at 1602-03. There is no indication
in the record that the veteran appealed the adverse portions of this Board decision.
Mr. Devins underwent the ordered VA peripheral nerves examination in December 2012.
R. at 750-60. He reported daily low back pain radiating to below his left knee with numbness, R.
at 751, and indicated that he regularly used a cane for ambulation, R. at 759. The examiner marked
boxes for complaints of “Moderate” left lower extremity pain, paresthesia and/or dysesthesia, and
numbness. R. at 751-52. However, nerve testing was normal, R. at 756, and the examiner stated
that “[t]he veteran has symptoms of a radiculopathy but physical exam and electrodiagnostics do
not verify a radiculopathy,” R. at 760. She therefore concluded that the veteran did not have a
peripheral nerve condition or peripheral neuropathy. R. at 751.
In February 2013, the VA Appeals Management Center (AMC) issued a Supplemental
SOC (SSOC) denying a separate evaluation for left lower extremity radiculopathy, R. at 1555-58,
and the Board continued that denial in an August 2013 decision, R. at 1389-97. However, in
February 2014, the Board vacated the August 2013 decision and remanded the left lower extremity
radiculopathy claim because the Board had not considered evidence in its possession at that time
that had not been associated with the claims file. R. at 1209-15. The AMC subsequently issued a
July 2014 SSOC continuing to deny entitlement to a separate left lower extremity radiculopathy
evaluation. R. at 715-29.
In the meantime, Mr. Devins filed a formal application for TDIU in March 2014, in which
he attributed his current unemployment to post-traumatic stress disorder, anxiety, depression, rage,
and “back pain.” R. at 707-08.
4
The veteran was afforded another VA examination in January 2015 and reported flare-ups
of intense pain shooting down his left leg. R. at 159. He stated that, during flare-ups, he could not
bend over and pick things up and sometimes needed to use a cane due to leg weakness. Id. A
sensory examination revealed decreased sensation in the lower left leg and foot and the examiner
indicated that the veteran had moderate paresthesia and/or dysesthesia in the left lower extremity.
R. at 163. The examiner diagnosed sciatic nerve involvement and classified the veteran’s left lower
extremity radiculopathy as moderately disabling. R. at 164.
In February 2015, the RO denied entitlement to TDIU because it could not locate Mr.
Devins’s March 2014 TDIU application and he had not provided a duplicate copy when the RO
asked for one. R. at 134. He provided a copy the following month and, in May 2015, the RO
granted entitlement to TDIU effective March 21, 2014, the date that he initially filed his formal
application for that benefit. R. at 61-66. It is unclear from the record whether Mr. Devins took
any further action in response to that rating decision.
In August 2016, the Board issued the decision currently on appeal, which, in relevant part,
granted a separate 10% evaluation, but no higher, for left lower extremity radiculopathy under
38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520, prior to January 30, 2015, the date of the most
recent VA examination. R. at 2-15. The Board explained that an evaluation in excess of 10% was
not warranted for that period because Mr. Devins’s radicular symptoms then were “both transitory
and, when apparent, so mild as to escape most objective testing.” R. at 13. The Board did not
address whether he was entitled to a TDIU effective date earlier than March 21, 2014. See R. at
2-15. This appeal followed.
II. ANALYSIS
A. Left Lower Extremity Radiculopathy Prior to January 30, 2015
Mr. Devins first argues that the Board provided inadequate reasons or bases for denying a
left lower extremity radiculopathy evaluation in excess of 10% prior to January 30, 2015, because
it (1) overlooked potentially favorable evidence of moderate radiculopathy symptoms and
mischaracterized the evidence that it did address; (2) failed to adequately distinguish between mild
and moderate symptoms for evaluation purposes; and (3) did not comply with the guidance found
in the VA Adjudication Procedures Manual (M21-1) regarding evaluation of peripheral nerve
5
disabilities. Appellant’s Brief (Br.) at 8-21; Reply Br. at 1-6. The Secretary disputes these
contentions and urges the Court to affirm the Board decision. Secretary’s Br. at 8-16.
The Board’s determination of the appropriate degree of disability is a finding of fact subject
to the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood
v. Brown, 10 Vet.App. 93, 97 (1997). 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); Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze
the credibility and probative value of evidence, account for evidence that it finds persuasive or
unpersuasive, and provide reasons for its rejection of 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. Devins’s left lower extremity radiculopathy is evaluated by analogy to paralysis of the
sciatic nerve under § 4.124a, DC 8520. See R. at 7. Relevant to this appeal, DC 8520 provides a
10% evaluation for mild incomplete paralysis and a 20% evaluation for moderate incomplete
paralysis. 38 C.F.R. § 4.124a, DC 8520 (2017). A note to the portion of the rating schedule for
diseases of the peripheral nerves directs that, where involvement is “wholly sensory,” the
evaluation “should be for the mild, or at most, the moderate degree.” 38 C.F.R. § 4.124a; see
Miller v. Shulkin, 28 Vet.App. 376, 380 (2017) (holding that § 4.124a provides a maximum 20%
schedular evaluation for wholly sensory manifestations of incomplete paralysis of a peripheral
nerve and does not mandate an evaluation greater than 20% when there is non-sensory
involvement).
The Board’s reasons or bases for denying Mr. Devins a left lower extremity radiculopathy evaluation in excess of 10% prior to January 30, 2015, are inadequate in two respects. First, in finding that the veteran’s neurologic symptoms during that period were “transitory” and therefore mild, the Board erroneously stated that, “from April 2007 through January 2009, the [v]eteran made no report of any left lower extremity radiculopathy symptomatology and examiners failed to note any evidence of the condition.” R. at 12. However, at a July 2007 VA contract examination, the veteran complained of constant, severe low back pain that radiated to his hips, preventing him from sitting or standing for prolonged periods and causing sleeplessness and difficulties driving
6
and taking care of his children. R. at 2673. Likewise, in August 2008, he complained to a private physician of left sciatic nerve pain. R. at 455. The Board did not discuss these documents in its decision and, to the extent that they contradict the Board’s finding that the veteran’s radiculopathy symptoms were not present or were only mild from April 2007 to January 2009, they constitute favorable evidence that the Board was required to address. See Caluza, 7 Vet.App. at 506. The Board’s failure to do so prevents Mr. Devins from understanding the precise basis for its implicit rejection of that evidence and frustrates judicial review of the Board’s assessment of the probative value of that potentially favorable evidence. See Gilbert, 1 Vet.App. at 57.
Second, the Board did not adequately account for evidence of “moderate” radiculopathy symptoms prior to January 2015. Although the December 2012 VA examiner marked boxes indicating that Mr. Devins had “Moderate” pain, paresthesia and/or dysesthesia, and numbness of the left lower extremity, R. at 751-52, the Board did not mention the examiner’s characterization of those neurologic symptoms when assessing the severity of the veteran’s left lower extremity radiculopathy prior to January 2015, R. at 10. This omission is particularly glaring in light of the Board’s decision to award a higher 20% evaluation since January 30, 2015, based on the January 2015 VA examiner’s characterization of the veteran’s symptoms at that time as moderate, in which the January 2015 VA examiner marked even fewer “Moderate” symptoms checkboxes on the disability benefits questionnaire. Compare R. at 163 (January 2015 VA examination report reflecting “Moderate” left lower extremity paresthesia and/or dysesthesia only), with R. at 751-52 (December 2012 VA examination report reflecting “Moderate” left lower extremity pain, paresthesia and/or dysesthesia, and numbness); see R. at 13 (awarding a 20% evaluation since January 30, 2015, because the January 2015 VA examiner indicated that the veteran’s left lower extremity radiculopathy “was productive of moderate symptomatology, specifically moderate paresthesias and/or dysesthesias”). The Board’s failure to resolve this apparent inconsistency in its treatment of the December 2012 and January 2015 VA examination reports, as well as its failure to discuss the potentially favorable findings of the December 2012 examiner, further frustrates judicial review. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
Accordingly, the Court concludes that the Board provided inadequate reasons or bases for
denying an evaluation in excess of 10% for left lower extremity radiculopathy prior to January 30,
2015. Remand of that issue is therefore warranted. See Tucker v. West, 11 Vet.App. 369, 374
(1998) (holding that remand is the appropriate remedy “where the Board has incorrectly applied
7
the law, failed to provide an adequate statement of reasons or bases for its determinations, or where
the record is otherwise inadequate”).
Given this disposition, the Court need not address Mr. Devins’s additional reasons-or-bases
argument regarding the Board’s alleged noncompliance with the instructions in the M21-1 for
evaluating peripheral nerve disorders. See Appellant’s Br. at 16-21; Reply Br. at 4-6. He remains
free to present that argument, as well as any additional arguments and evidence, to the Board on
remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). 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.
B. Earlier TDIU Effective Date
Mr. Devins next argues that the Board erred in not addressing whether he was entitled to
an effective date earlier than March 21, 2014, for the award of TDIU, an issue that he contends
was “part and parcel” of left lower extremity radiculopathy claim. Appellant’s Br. at 21-25.
Specifically, he analogizes his case to Palmatier v. McDonald, 626 F. App’x 991 (Fed. Cir. 2015),
and asserts that, “because [his] claim for TDIU was based in part on his ongoing claim for an
increased rating for his low back disability, it remained a component of that claim because it was
never withdrawn.” Id. at 22. The Secretary responds that the Board was not obligated to address
that issue because the Board in November 2012 found that entitlement to TDIU had not been
reasonably raised by the record; he did not timely appeal that adverse determination; and the record
did not contain cogent evidence of unemployability due to service-connected disability prior to
March 21, 2014, when he filed his formal application for TDIU and first alleged that his serviceconnected
back problems contributed to his unemployability. Secretary’s Br. at 16-19. Mr. Devins
counters that he was unable to appeal the November 2012 Board decision because it was a nonfinal
remand order and, in any event, his filing of the March 2014 TDIU application during the
course of his appeal of the increased left lower extremity evaluation raised entitlement to TDIU in
connection with that claim, permitting a possible TDIU effective date back to March 2007 when
he filed the underlying increased evaluation claim. Reply Br. at 6-12. The law and facts of this
case compel the outcome advanced by the Secretary, albeit for slightly different reasons.
8
In Rice v. Shinseki, 22 Vet.App. 447, 454-55 (2009), the Court held that, when entitlement
to TDIU is expressly raised by the veteran or reasonably raised by the evidence of record in the
context of a claim for an increased evaluation for a service-connected disability, TDIU ordinarily
becomes “part of [the] claim for increased compensation.” However, in a subsequent case,
Locklear v. Shinseki, 24 Vet.App. 311, 315 (2011), the Court indicated that bifurcation of the TDIU
issue from the underlying claim for an increased evaluation “would provide distinguishing
circumstances” from the general rule announced in Rice and allow for separate adjudication of the
issues. See also Rice, 22 Vet.App. at 455 n.7 (expressly acknowledging the existence of possible
exceptions to the general rule); Holland v. Brown, 6 Vet.App. 443, 447 (1994) (holding that “it
was not inappropriate” for the Board to refer the issue of entitlement to TDIU to the RO for further
adjudication and still decide an increased evaluation claim). That is precisely what happened here.
In November 2012, the Board found that the record had reasonably raised the issue of
entitlement to a separate evaluation for left lower extremity radiculopathy associated with serviceconnected
low back disability and remanded that issue for development and adjudication. R. at
1602-03. In that same decision, the Board denied entitlement to an increased low back evaluation
and, in doing so, found that entitlement to TDIU had not been reasonably raised by the record in
the context of that claim. R. at 1588-1602. Mr. Devins did not object to that aspect of the Board
decision, and it became final.
Subsequent VA actions communicated to Mr. Devins that adjudication of the left lower
extremity radiculopathy claim—the only claim currently on appeal—was proceeding separately
from the issue of entitlement to TDIU. For example, following the November 2012 Board
decision, VA repeatedly adjudicated the issue of entitlement to a separate left lower extremity
radiculopathy evaluation without mentioning entitlement to TDIU. See R. at 1555-58 (February
2013 SSOC denied a separate left lower extremity radiculopathy evaluation), 1389-97 (August
2013 Board decision doing the same), 1209-15 (February 2014 Board decision sua sponte
remanding the claim), 715-29 (July 2014 SSOC continuing to deny a separate evaluation).
Tellingly, Mr. Devins did not challenge any of those decisions for failing to address TDIU in the
context of the left lower extremity radiculopathy claim, including the July 2014 SSOC, which was
issued after he filed his formal application for TDIU in March 2014.
Furthermore, when the RO made its initial TDIU decision in February 2015, it adjudicated
that issue alongside five other claims, but affirmatively indicated that the left lower extremity
9
radiculopathy claim was a jurisdictionally separate claim at a different stage of the appellate
process. R. at 129 (informing the veteran that the RO was “not able to address left lower extremity
radiculopathy, since that issue is on appeal and will be addressed by the Board”). At that point
Mr. Devins was aware that the issue of entitlement to TDIU was proceeding separately from his
left lower extremity radiculopathy claim, and he responded to the RO in kind by providing the
information it had deemed missing in February 2015, ultimately leading to a May 2015 rating
decision awarding TDIU effective March 21, 2014. R. at 61-66. If the veteran then disagreed with
any aspect of the May 2015 RO decision, he was able to carry an appeal forward and challenge
that RO adjudication, including the March 2014 effective date assigned by the RO; however, he
did not do so. Given that the issue of entitlement to TDIU had been adjudicated apart from the
claim for a separate left lower extremity radiculopathy evaluation since February 2012, the Court
is convinced that the facts of this case warrant exception to the general rule that TDIU is usually
not a separate claim.
Although Mr. Devins equates his case to the U.S. Court of Appeals for the Federal Circuit’s
(Federal Circuit’s) nonprecedential case in Palmatier, the instant facts provide distinguishing
circumstances. In Palmatier, the Federal Circuit found that the issue of entitlement to TDIU,
including any challenge to an effective date for that benefit earlier than that assigned by the RO in
a separate unappealed decision, had not been bifurcated from an underlying 2002 claim for service
connection for a low back disability because the appellant “placed the VA on notice on multiple
occasions” that he intended the low back claim to encompass TDIU. 626 F. App’x at 995.
However, the record in this case does not reflect a similar intent.
Unlike in Palmatier, none of Mr. Devins’s appeal documents refers to or reasonably raises
the issue of entitlement to TDIU in the context of the claim that ultimately reached the Board.
Neither the May 2008 Notice of Disagreement initiating the instant appeal nor the March 2010 VA
Form 9 perfecting that appeal mentioned unemployability, see R. at 1987-88, 2595-96, and the
February 2012 Board decision recognizing the reasonably raised issue of entitlement to a separate
evaluation for left lower extremity radiculopathy affirmatively found that entitlement to TDIU had
not yet been raised in connection with the claim for an increased low back evaluation, R. at 1589-
90. Moreover, other than the March 2014 formal application for TDIU, the record does not contain
a single document that references unemployability associated with left lower extremity
radiculopathy, even implicitly, in the context deemed relevant in Palmatier. Finally, as mentioned
10
above, at no point during the development and adjudication of the left lower extremity
radiculopathy claim did Mr. Devins challenge any AMC or Board decision that did not address
entitlement to TDIU, including the July 2014 SSOC that was issued after he filed his March 2014
formal application for TDIU. In short, the facts of Mr. Devins’s case are significantly different
from those in Palmatier, where the veteran repeatedly referenced an inability to work due to the
back condition that was before the Board on the issue of the proper evaluation. That key distinction
supports differential treatment in the instant case, and Mr. Devins’s reliance on Palmatier for
persuasive guidance therefore fails.
Given the foregoing, the Court concludes that the Board did not err in not addressing the
jurisdictionally separate issue of entitlement to a TDIU effective date earlier than March 21, 2014.
To the extent that Mr. Devins believed that he was entitled to such relief, he had the opportunity
to appeal the May 2015 RO decision assigning the disputed effective date, but apparently declined
to do so. The Court will not allow him to resurrect that issue in this appeal.
III. CONCLUSION
Upon consideration of the foregoing, the portion of the August 2016 Board decision
denying a left lower extremity radiculopathy evaluation in excess of 10% prior to January 30,
2015, is SET ASIDE and that matter is REMANDED for readjudication consistent with this
decision. The balance of the appeal is DISMISSED.
DATED: November 28, 2017
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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