Veteranclaims’s Blog

January 1, 2018

Single Judge Application; Lyles v. Shulkin, __ Vet.App. __, __, No. 16-0994, 2017 WL 5891831 at *8; C.F.R. § 4.40 and C.F.R. § 4.45; Sharp, 29 Vet.App. at 34-35;

Excerpt from decision below:

“Ms. Hunter responds that the cited physical therapy and treatment notes, like the June 2008 VA examination report, do not discuss additional functional loss during flare-ups and therefore “have no bearing” on that issue. Reply Br. at 2. She also asserts that the examination was inadequate because it did not
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comply with the Court’s holding in Sharp v. Shulkin, 29 Vet.App. 26 (2017). The veteran’s arguments are persuasive.
A veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where, inter alia, there is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, __ Vet.App. __, __, No. 16-0994, 2017 WL 5891831 at *8, 2017 U.S. App. Vet. Claims LEXIS 1704 at *23-24 (Vet. App. Nov. 29, 2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp, 29 Vet.App. at 31-32.”

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For an examination not conducted during a flare-up to comply with § 4.40, the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran[],” and “offer [a] flare opinion[] based on [an] estimate[] derived from information procured from relevant sources, including the lay statements of [the] veteran[].” Sharp, 29 Vet.App. at 34-35. The examiner’s determination in that regard “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” DeLuca, 8 Vet.App. at 206 (emphasis added) (internal quotation marks and alteration omitted); see Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (summarizing DeLuca and concluding that an examination was inadequate because it “did not discuss whether any functional loss was attributable to pain during flare-ups, despite noting the appellant’s assertions [thereof]”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-0203
CECELIA HUNTER, 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 Cecilia Hunter appeals through counsel a December 16, 2016, Board of Veterans’ Appeals (Board) decision denying an increased disability evaluation for lumbar spine disability in excess of 20% prior to March 10, 2014, and in excess of 40% since that date. Record (R.) at 2-23.1 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 December 2016 Board decision denying an increased lumbar spine evaluation in excess of 20% prior to March 10, 2014, and remand that matter for further development and readjudication consistent with this decision. The Court will
1 The Board granted an increased 40% evaluation for lumbar spine disability since March 10, 2014. R. at 20. Because that determination 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.”). The Board also denied service connection for a thyroid disorder and entitlement to initial evaluations in excess of 10% for lumbar neuritis of the left and right lower extremity. R. at 7-12, 17-23. Because Ms. Hunter does not challenge those portions of the Board decision, the appeal as to those matters 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).
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affirm the portion of the Board decision denying an increased lumbar spine evaluation in excess of 40% since that date.

I. FACTS
Ms. Hunter served on active duty in the U.S. Army from January 1977 to December 1980. R. at 51. In June 1981, a VA regional office (RO) granted service connection for lumbar spine disability and assigned a noncompensable evaluation effective January 1, 1981, the day after her separation from service. R. at 1076. That evaluation was subsequently increased to 10% effective January 16, 1998, and 20% effective March 3, 2006. R. at 550, 835-37, 839-43.
The current appeal stems from a February 2008 claim for an increased lumbar spine evaluation. R. at 602-05. Ms. Hunter underwent a VA examination in connection with that claim in June 2008 and complained of constant low back pain and spasms exacerbated by sitting, housework, and lifting. R. at 556. She reported that such flare-ups occurred “a couple times” per month and usually lasted three to four days, but sometimes more than a week. R. at 557-58. She explained that increased back symptoms during flare-ups made it difficult to walk and occasionally left her “incapacitated for days.” R. at 558. After performing range of motion tests, the examiner indicated that he was unable to quantify the extent of any additional functional loss during flare-ups without resort to mere speculation because the veteran was not experiencing a flare-up during the examination. R. at 569.
In August 2008, the RO denied an increased lumbar spine evaluation in excess of 20%. R. at 547-51. Ms. Hunter timely disagreed with that decision in December 2008, R. at 542; the RO continued the denial in a March 2009 Statement of the Case (SOC), R. at 359-86; and she perfected an appeal to the Board the following month, R. at 310-13.
In April 2011, the Board remanded the claim to provide a hearing, R. at 242-47, which was held in December 2011, R. at 206-25. At the hearing, Ms. Hunter testified that she experienced flare-ups of low back symptoms a couple of times per month, which were “very debilitating” and interfered with her work. R. at 217.
In March 2012, the Board remanded the claim again for further development, including to obtain a contemporaneous VA spine examination. R. at 194-203. Ms. Hunter underwent the ordered examination in March 2014 and reported low back flare-ups every six to eight weeks, lasting two weeks at a time, that interfered with her work, impeded sitting and standing, and
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rendered her bedridden. R. at 117. Range of motion tests revealed forward flexion of the lumbar spine to 65 degrees with pain beginning at 35 degrees, id., but the examiner estimated that the veteran would lose approximately 30 degrees of forward flexion during a flare-up, R. at 123. In December 2014, the RO issued a Supplemental SOC continuing to deny an increased lumbar spine evaluation. R. at 52-84.
The claim was subsequently returned to the Board, which, in December 2016 issued the decision currently on appeal. R. at 2-23. As relevant here, the Board granted an increased 40% evaluation for lumbar spine disability based on the most recent VA examiner’s estimate of the veteran’s additional functional loss during flare-ups and assigned an effective date for the increase commensurate with the date of that examination—i.e., March 10, 2014. R. at 20. The Board, however, denied an increased lumbar spine evaluation prior to that date because the evidence of record relating to that period, including the June 2008 VA spine examination, did not establish limitation of motion sufficient to support an evaluation in excess of 20%. R. at 16. This appeal followed.

II. ANALYSIS
A. Lumbar Spine Evaluation in Excess of 20% Prior to March 10, 2014
Ms. Hunter argues, inter alia, that the June 2008 VA examination was inadequate—and the Board therefore clearly erred in relying on it to deny a lumbar spine evaluation in excess of 20% prior to March 10, 2014—because the examiner did not opine as to the degree of additional functional loss during flare-ups or provide an adequate explanation of why such an opinion was not possible. Appellant’s Brief (Br.) at 7-10. The Secretary concedes that the examiner did not address that issue, but argues that any error in that regard was harmless because contemporaneous physical therapy and treatment notes show improved range of lumbar spine motion. Secretary’s Br. at 7-8. The Secretary also contends that a remand for further development of the issue would be fruitless because the veteran “does not posit any way in which an examiner can measure her ROM [(range of motion)] loss several years after an examination.” Id. at 7. Ms. Hunter responds that the cited physical therapy and treatment notes, like the June 2008 VA examination report, do not discuss additional functional loss during flare-ups and therefore “have no bearing” on that issue. Reply Br. at 2. She also asserts that the examination was inadequate because it did not
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comply with the Court’s holding in Sharp v. Shulkin, 29 Vet.App. 26 (2017). The veteran’s arguments are persuasive.
A veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where, inter alia, there is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, __ Vet.App. __, __, No. 16-0994, 2017 WL 5891831 at *8, 2017 U.S. App. Vet. Claims LEXIS 1704 at *23-24 (Vet. App. Nov. 29, 2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp, 29 Vet.App. at 31-32.
When the Secretary undertakes to provide a veteran with a VA medical examination or opinion, he must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA joints examination that fails to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups, is inadequate for evaluation purposes. DeLuca v. Brown, 8 Vet.App. 202, 206-07 (1995). For an examination not conducted during a flare-up to comply with § 4.40, the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran[],” and “offer [a] flare opinion[] based on [an] estimate[] derived from information procured from relevant sources, including the lay statements of [the] veteran[].” Sharp, 29 Vet.App. at 34-35. The examiner’s determination in that regard “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” DeLuca, 8 Vet.App. at 206 (emphasis added) (internal quotation marks and alteration omitted); see Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (summarizing DeLuca and concluding that an examination was inadequate because it “did not discuss whether any functional loss was attributable to pain during flare-ups, despite noting the appellant’s assertions [thereof]”). When an examiner states that he or she cannot offer a flare opinion without resort to speculation, that opinion is adequate only when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Sharp, 29 Vet.App. at 36 (quoting Jones v. Shinseki, 23 Vet.App. 382, 390 (2010)).
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The adequacy of a medical examination is a finding of fact that the Court reviews under the “clearly erroneous” standard. D’Aries v. Peake, 22 Vet.App. 97, 104 (2008). “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)).
Sharp is dispositive. That case involved a VA examiner’s opinion that she could not estimate the degree of additional functional loss during a flare-up without resort to mere speculation because the veteran was not experiencing a flare during the examination. Sharp, 29 Vet.App. at 30. The Court concluded that the examination was inadequate for evaluation purposes because the examiner “did not elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares”; did not “estimate the veteran’s functional loss due to flares based on all the evidence of record—including the veteran’s lay information”; and did not “explain why she could not do so.” Id. at 34-35.
Although the June 2008 VA examiner in this case, unlike the VA examiner in Sharp, asked the veteran to describe her symptoms and functional loss during flare-ups, R. at 556-58, the examiner did not use that information to calculate the degree of additional functional loss that Ms. Hunter experienced during flare-ups. Instead, like the VA examiner in Sharp, the examiner in this case indicated that he was unable to offer a flare opinion without resort to mere speculation because he had not personally observed the veteran during a flare-up. Compare R. at 569, with Sharp, 29 Vet.App. at 30. As in Sharp, such an explanation reflects a “general aversion to offering an opinion on issues not directly observed” rather than a limitation encountered despite consideration of all procurable and assembled data. 29 Vet.App. at 33. Thus, like the VA opinion in Sharp, the June 2008 VA examiner’s opinion in this case was inadequate for evaluation purposes, see id. at 35; see also Mitchell, 25 Vet.App. at 44; DeLuca, 8 Vet.App. at 206-07, and the Board clearly erred in relying on it to deny a lumbar spine evaluation in excess of 20% prior to March 10, 2014, see D’Aries, 22 Vet.App. at 104; Ardison v. Brown, 6 Vet.App. 405, 407 (2012) (holding that the Board errs when it relies on an inadequate medical examination report or opinion).
The Secretary’s arguments to the contrary are unavailing. Even assuming that he is correct that physical therapy and treatment records contemporaneous to the examination reflect ranges of motion that would not support an evaluation in excess of 20%, Secretary’s Br. at 7-8 (citing R. at
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134, 1624-25, 1633), they cannot cure the deficiency in the June 2008 VA examination because those records do not reflect the degree of any additional functional loss during flare-ups. Moreover, the Court disagrees with the Secretary that a remand for further development of this issue would be fruitless because, contrary to the Secretary’s contention, id. at 7, an examiner could review Ms. Hunter’s lay statements regarding flare-ups in June 2008 and estimate, based on that evidence, the additional functional loss that flares caused at that time. See Sharp, 29 Vet.App. at 35 (explaining that “the Court’s case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”); see also Chotta v. Peake, 22 Vet.App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). Therefore, the Court rejects the Secretary’s invitation to find harmless the Board’s reliance on the inadequate June 2008 VA examination. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”).
Accordingly, the Court concludes that remand is warranted to obtain a retrospective medical opinion that adequately addresses and quantifies the degree of additional functional loss during flare-ups prior to March 10, 2014. See Chotta, 22 Vet.App. at 85; Barr, 21 Vet.App. at 311; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “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”). Such an opinion shall be based on the evidence of record from that period regarding the veteran’s lumbar spine symptoms and functional limitations during flare-ups, including but not limited to her lay statements from the June 2008 VA examination and the December 2011 Board hearing. R. at 217, 556-58; see Sharp, 29 Vet.App. at 35.
The veteran is free on remand to present any additional arguments and evidence to the Board pertinent to this issue 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.
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B. Lumbar Spine Evaluation in Excess of 40% Since March 10, 2014
Ms. Hunter next argues that the Board provided inadequate reasons or bases for its decision to assign March 10, 2014, as the effective date for the increased 40% lumbar spine evaluation because it “failed to adequately consider the retrospective nature” of the March 2014 VA examination upon which the increase was based. Appellant’s Br. at 14. Relying on McGrath v. Gober, 14 Vet.App. 28 (2000), she asserts that the Board improperly used the March 10, 2014, examination date as the effective date for the increased evaluation because the flare-ups she described to the examiner “occurred in the weeks and months prior to the March 2014 examination[] and did not suddenly worsen on the date of the examination itself.” Id. at 15-16; see also Reply Br. at 7-9.2 The Secretary disputes this contention and argues that the Board’s selection of March 10, 2014, as the effective date for the 40% evaluation had a plausible basis in the record and was adequately explained. Secretary’s Br. at 10-12. The veteran’s reliance on McGrath is misplaced.
Generally, the effective date of an award of disability compensation based on an original claim or a claim for increased compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2017); see Mitchell v. McDonald, 27 Vet.App. 431, 433 (2015). The Board’s effective date determination is a finding of fact that the Court reviews for clear error. See Evans v. West, 12 Vet.App. 396, 401 (1999). As with any finding on a material issue of fact and law presented on the record, the Board must support its effective date 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).
2 Ms. Hunter does not challenge the Board’s denial of an evaluation in excess of 40% and instead limits her arguments to the effective date assigned. The Court therefore considers abandoned any challenge to the evaluation level since March 10, 2014, and will not address that issue further. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that the Court has discretion to deem abandoned issues not argued on appeal).
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In McGrath, the Court stated that, “in an original claim for benefits, the date the evidence is submitted or received is irrelevant when considering the effective date of an award” because the effective date of an award “‘shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.'” 14 Vet.App. at 35 (quoting 38 U.S.C. § 5110(a)). In that case, the Court concluded that the Board erred in not considering an effective date earlier than the June 1992 date of the veteran’s formal claim for service connection for post-traumatic stress disorder (PTSD) because the Board found that he filed an informal nervous condition claim in January 1972 that was pending and unadjudicated and a doctor’s letter from 1994 indicated that “the appellant had been suffering demonstrable and overt symptoms of PTSD since May 1975 when he began treating the appellant.” Id. at 32. The Court explained that the doctor’s letter did not, as the Board had found, constitute “new facts created in 1994” and, therefore, the veteran was not precluded from using that evidence, “whatever date it may be submitted, to support his claim for an earlier effective date in his original claim for compensation.” Id.; see also Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014) (noting that “a medical opinion could diagnose the presence of [a] condition and identify an earlier onset date based on preexisting symptoms”).
But unlike the doctor’s letter in McGrath, the March 2014 VA examination report does not specify an earlier date when Ms. Hunter’s increased lumbar spine symptoms began. See R. at 116-26. Nor does the remainder of the record, as outlined by the Board. R. at 14-20. Although Ms. Hunter is correct as a matter of logic that at least some of her worsened lumbar spine symptoms recorded at the March 2014 VA examination and relied on by the Board to award an increased evaluation must have been present before the date of the examination, there is nothing in the examination report itself or elsewhere in the record that identifies an earlier date of onset or suggests one more appropriate than that assigned. In such circumstances, the Court discerns no legal error in the Board’s acceptance of March 10, 2014, as the date from which to assign a 40% evaluation. See Young, 766 F.3d at 1354 n.3 (distinguishing McGrath because “there was a retrospective diagnosis” identifying a specific onset date); Evans v. West, 12 Vet.App. at 401; Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57. Accordingly, the Court will affirm the
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portion of the Board decision denying an increased lumbar spine evaluation in excess of 40% since March 10, 2014.3
III. CONCLUSION
Upon consideration of the foregoing, the portion of the December 16, 2016, Board decision denying an increased lumbar spine evaluation in excess of 20% prior to March 10, 2014, is SET ASIDE and that matter is REMANDED for further development and readjudication consistent with this decision. The portion of the Board decision denying an increased lumbar spine evaluation in excess of 40% since that date is AFFIRMED. The balance of the appeal is DISMISSED.
DATED: December 28, 2017
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
3 This section should not be read to limit or foreclose the Board’s ability to assign a lumbar spine evaluation in excess of 20% prior to March 10, 2014, based on any evidence developed on remand. See supra pt. II.A. To be clear, the Court concludes only that the Board’s selection of March 10, 2014, as the effective date for the increased 40% evaluation for that condition was not clearly erroneous or inadequately explained.

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