Veteranclaims’s Blog

January 21, 2018

Single Judge Application; ankylosis; Shipwash v. Brown, 8 Vet.App. 218, 221 (1995); immobility and consolidation of a joint;

Excerpt from decision below:

“The Board correctly noted that to receive a disability rating higher than 40%, a finding of ankylosis (or a finding that the appellant meets the criteria found in DC 5243 for a 60% disability rating) is required. See Shipwash v. Brown, 8 Vet.App. 218, 221 (1995) (holding that “ankylosis,” for purposes of the VA Schedule for Rating Disabilities, means “immobility and consolidation of a joint due to disease, injury, or surgical procedures” (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988))).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-3743
RAYMOND K. BILLMEIER, II, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Raymond K. Billmeier, II, appeals through counsel a July 9, 2015, decision of the Board of Veterans’ Appeals (Board) denying entitlement to a disability rating in excess of 40% for a low back disability, including an extraschedular rating under 38 C.F.R. § 3.321(b). Record (R.) at 3-27. Both parties filed briefs, and the appellant filed a reply brief.1 This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single judge may
conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will affirm the Board’s decision as to the assignment of a 40% schedular
rating for a low back disability and will vacate and remand the Board’s decision as to the denial of
an extraschedular rating for a low back disability.
1The appellant does not challenge the Board’s denial of an effective date prior to February 11, 2000, for an
increased rating for a low back disability; an effective date earlier than June 9, 2008, for his total disability rating based
on individual unemployability (TDIU); effective dates earlier than May 13, 2011, for bilateral leg radiculopathy; and
disability ratings in excess of 20% for bilateral leg radiculopathy. These matters are deemed abandoned and thus
dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015).
I. SUMMARY OF FACTS
The appellant served in the National Guard from July 1975 to July 1984 and had verified
active service from June 18, 1983, to July 2, 1983. R. at 4. The appellant’s back disability is rated
20% from June 6, 1988, and 40% from February 11, 2000, and he was awarded TDIU, effective from
June 9, 2008. R. at 249-50, 365-67. The claim has been addressed by several decisions by the Board
and orders from the Court. See R. at 595-99 (September 2009 Court remand in No. 09-0829 based
on a joint motion for remand of the § 3.321 extraschedular rating matter for the Board to address
certain favorable evidence). In January 2012, the Board denied a rating higher than 40% on a
schedular basis and remanded the matter of an extraschedular rating under § 3.321(b) for a VA
regional office (RO) to refer that matter to the Director of Compensation Service. R. at 324-26. The
January 2012 Board decision as to the schedular rating was not appealed and became final. In
October 2012, the Director of Compensation Service denied entitlement to an extraschedular rating
in excess of the 40% rating prior to June 9, 2008, under § 3.321(b). R. at 236-39.
In the July 2015 decision here on appeal, the Board denied a schedular rating in excess of
40% for the period after July 2012 and concurred with the October 2012 determination of the
Director of Compensation Service in concluding that this case did not warrant extraschedular
consideration. R. at 3-21. This appeal followed.
II. ANALYSIS
A. Schedular Rating in Excess of 40% for Low Back Disability
As an initial matter, the Court notes that the appellant does not challenge the Board’s
determination that the matter of a schedular rating in excess of 40% prior to July 2012 is not on
appeal. The Board issued a final decision on the claim for an increased rating in January 2012, R.
at 295-326, and the appeal period under review commenced on July 17, 2012, which is the date of
a VA examination. R. at 15, 254-66. Accordingly, the Court is reviewing the Board’s denial of a
schedular rating in excess of 40% for this latter period beginning on July 17, 2012.
The appellant contends that the Board provided an inadequate statement of reasons or bases
for its determination that the analysis in Deluca v. Brown, 8 Vet.App. 202 (1995), did not apply to
his claim for a rating in excess of 40% after July 17, 2012. Appellant’s Brief (App. Br.) at 5-6.
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The appellant is currently in receipt of a 40% disability rating for his low back disability
under Diagnostic Code (DC) 5242. Disabilities of the spine are rated under the General Rating
Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2016). The
rating criteria, in pertinent part, provide that a 40% rating is warranted when forward flexion of the
thoracolumbar spine is limited to 30 degrees or less; or when favorable ankylosis of the entire
thoracolumbar spine is present. Id. A 50% rating is warranted where unfavorable ankylosis of the
entire thoracolumbar spine is present, and a 100% rating is warranted for unfavorable ankylosis of
the entire spine. Id. These ratings are made with or without symptoms such as pain (whether or not
it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id.
In rating musculoskeletal disabilities, the Board must consider whether a higher disability
rating is warranted on the basis of functional loss due to weakness, fatigability, incoordination, pain
on movement of a joint, and swelling, among other symptoms. 38 C.F.R. §§ 4.40 (2016), 4.45
(2016); see DeLuca, 8 Vet.App. at 206-07. The assignment of a disability rating is a factual finding
that the Court reviews under the “clearly erroneous” standard of review. Johnston v. Brown, 10
Vet.App. 80, 84 (1997). “‘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 conviction that
a mistake has been committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
In addition, the Board is required to provide a written statement of the reasons or bases for
its findings and conclusions on all material issues of fact and law presented on the record; the
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. See 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert, 1 Vet.App.
at 57. To comply with this requirement, the Board must analyze the credibility and probative value
of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide
the reasons for its rejection of any 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); Gabrielson
v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, 1 Vet.App. at 57.
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In its decision, the Board noted that the appellant was currently in receipt of a 40% rating for
his low back disability under DC 5242 and that he is receiving the “highest schedular rating available
for limitation of motion, [which is] 40[%].” R. at 16. The Board stated, “Where a musculoskeletal
disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca
analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997).” R. at 16. The Board further
stated,
The only means of obtaining a schedular rating in excess of 40 percent for a back
disability is through the showing of either ankylosis or by showing the presence of
IVDS [(Intervertebral Disc Syndrome)] with incapacitating episodes[, under § 4.71a,
DC 5243]. Here, the 2012 VA examination report concluded that neither ankylosis
nor IVDS was present.
R. at 17.
The Board correctly noted that to receive a disability rating higher than 40%, a finding of ankylosis (or a finding that the appellant meets the criteria found in DC 5243 for a 60% disability rating) is required. See Shipwash v. Brown, 8 Vet.App. 218, 221 (1995) (holding that “ankylosis,” for purposes of the VA Schedule for Rating Disabilities, means “immobility and consolidation of a joint due to disease, injury, or surgical procedures” (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988))). Here, the appellant does not assert that he suffers from ankylosis or that his symptoms result in incapacitating episodes of at least six weeks. The Board correctly noted that, under the rating schedule for the spine, the maximum disability rating for loss of motion
is 40%, which the appellant has already been awarded. See 38 C.F.R. § 4.71a, DC 5242; see
Johnston, 10 Vet.App. at 85. To the extent that his argument can be construed as an argument that
the extent of the functional loss is akin to anklyosis, that is a matter for consideration under the
extraschedular provisions of § 3.321, as discussed below.
Therefore, the Court concludes that there is a plausible basis in the record for the Board’s
determination that an increased disability rating is not available to the appellant for functional loss
due to pain on use. See Gilbert, 1 Vet.App. at 52 (holding that when applying the “clearly
erroneous” standard, if the Court determines, after reviewing the record in its entirety, that the
Board’s finding of fact is supported by a plausible basis, “‘the [Court] may not reverse it even though
convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.'”)
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(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74(1985)). Accordingly, the Court
will affirm the Board’s denial of a schedular rating in excess of 40% for the appellant’s low back
disability.
B. Entitlement to an Extraschedular Evaluation
As an initial matter, the Secretary incorrectly asserts that, regarding entitlement to an
extraschedular evaluation under § 3.321(b), the “relevant time period only dates from July 17, 2012,”
based on the January 2012 Board decision. Secretary’s (Sec’y) Br. at 13. However, the Board in
January 2012 remanded the matter of an extraschedular evaluation, specifically noting that it “is still
in appeal status prior to June 9, 2008, as entitlement to TDIU has not been granted prior to that date,
but the issue of entitlement to an extra-schedular rating was in appeal status prior to that date.” R.
at 323 (emphasis added). Therefore, the January 2012 Board decision was not a final decision as to
the extraschedular matter. Accordingly, because the appellant was awarded TDIU, effective from
June 9, 2008, the period for which extraschedular consideration is on appeal is the period prior to
June 9, 2008.
The appellant argues that the Board failed to provide an adequate statement of reasons or
bases for why he was not entitled to an extraschedular rating. Specifically, he argues that the Board
failed to do an accurate comparison “between the level of severity and symptomatology of the
veteran’s service[-]connected disability with the established criteria found in the rating schedule for
that disability,” and also failed to take note of Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir.
2014), and determine whether an extraschedular rating was warranted based on his “combined
service[-]connected disabilities.” App. Br. at 6-9. In his reply brief, the appellant further argues that,
in his October 2012 decision, the Director of Compensation Service was required, in the first
instance, to consider “critical” evidence that the appellant’s “service-connected back condition
prevented employment of any nature prior to 2008,” and that, although the Board reviews de novo
the decision of the Director of Compensation Service, the Board erred in considering this evidence
in the first instance and its ability to make an informed decision was “significantly hampered.” App.
Reply Br. at 3-4.
The Secretary counters that the appellant has not pointed to any symptoms that are not
contemplated by the rating schedule and that, because the Board correctly found that the first element
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of Thun v. Peake, 22 Vet.App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir.
2009); was not met, the Board’s analysis of the second element “could not be the basis of a
prejudicial error.” Sec’y Br. at 12-13 (citing Yancy v. McDonald, 27 Vet.App. 484, 494-95 (2016)).
The Secretary also argues that the Board considered the combined effects of the appellant’s serviceconnected
disabilities and found that they did not meet the first Thun criterion. Sec’y Br. at 14-15
(citing R. at 19).
Whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun,
22 Vet.App. at 115; see 38 C.F.R. § 3.321(b)(1). First, the Board must determine whether the
evidence “presents such an exceptional disability picture that the available schedular evaluations for
that service-connected disability are inadequate.” Thun, 22 Vet.App. at 115. This requires that the
Board compare “the level of severity and symptomatology of the claimant’s service-connected
disability with the established criteria found in the rating schedule for that disability.” Id. If the first
requirement is satisfied, the Board must determine whether the claimant’s exceptional disability
picture exhibits other related factors such as “‘marked interference with employment’ or ‘frequent
periods of hospitalization.'” Id. at 116 (quoting 38 C.F.R. § 3.321(b)(1)). If the first two inquiries
are answered in the affirmative, the Board must refer the matter to the Under Secretary for Benefits
or the Director of the Compensation Service (Director) for completion of the third step–a
determination of whether, to accord justice, the claimant’s disability picture requires the assignment
of an extraschedular rating. Id.
The Board’s findings must also be supported by an adequate statement of reasons or bases
that explains why the schedular rating is adequate. See id. at 115. This necessarily includes 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 id. In Yancy, the Court
stated that “[a]lthough the first and second Thun elements involve separate factual questions, both
inquiries require a full and accurate description of a claimant’s disability picture” and
where the Board addresses both the first and second Thun elements and the Court
determines that the Board erred with respect to one of the elements, it must determine
whether that error is prejudicial in light of the Board’s analysis of the other element
and its underlying factual findings regarding the claimant’s disability picture.
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Yancy, 27 Vet.App. at 494 n.5.
Here, the Board addressed the first two Thun elements, finding that an extraschedular rating
was not warranted because the schedular rating was adequate and that the impairment with
employment caused by the appellant’s low back disability “is what would be expected to merit” the
40% assigned rating for the low back disability, as well as the two 20% ratings for neurologic
impairment as a result of his back disability. R. at 21.
However, the Court concludes that the Board’s discussion regarding the severity of the
appellant’s symptomatology frustrates judicial review as to both Thun elements. First, the Board
appears not to appreciate the fact that, in 2010 and 2012, this matter was previously referred by the
Board to the Director for extraschedular consideration. In the decision on appeal, the Board stated
that the appellant’s use of a wheelchair, a cane, and a brace for assistance with ambulation,
specifically to walk as a result of his back disability, does “not mean that the schedular rating criteria
do not adequately describe the symptoms of the veteran’s service connected disabilities, so as to
trigger referral for extraschedular consideration.” R. at 19-20 (emphasis added). Notably, a
different veterans law judge issued the prior remands.
In any event, even if this language is considered insignificant in light of the other Board
references to the Director’s 2012 decision, the Board made a general statement that the highest
schedular rating for limitation of motion of the back under DC 5242 contemplates the use of assistive
devices, such as a cane or brace, because the rating takes into account difficulty walking based on
“increased pain.” R. at 20. This statement does not sufficiently take into account the appellant’s
individual circumstances, symptomatology, and severity of symptomatology and is inadequate
because there is no indication in the schedular criteria for limitation of motion–i.e., the bending of
the back forward, backward, side-to-side–that difficulty walking is contemplated. Further, the
Board, in continuing in this line of analysis, made an unauthorized medical determination when it
stated that “the absence of the need for such devices would likely suggest that severe pain or
limitation of motion was not present.” Id.; see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)
(holding that when a Board inference “results in a medical determination, the basis for that inference
must be independent and it must be cited”); Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991)
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(holding that, when the Board reaches a medical conclusion, it must support its findings with
“independent medical evidence”).
In analyzing whether there was marked interference with employment, the Board
acknowledged that the appellant’s back disability causes impairment with employment and noted the
February 2000 statement from the appellant’s physician that the appellant “is totally disabled from
any employments due to his conditions, including his back disability.” R. at 21. However, the
Board then found that, regardless of the extent of the marked interference with employment, the
appellant’s assigned ratings contemplate and compensate him for “any impairment with
employment.” Id. (emphasis added). The Court concludes that the Board failed to support this
finding with adequate reasons or bases because it did not attempt to reconcile the evidence it noted
tending to show marked interference with employment with its conclusion that “any impairment” is
contemplated by the rating schedule. See Caluza, 7 Vet.App. at 506.
In addition, the Board prejudicially erred in failing to ensure that the Director complied with
the 2010 and 2012 Board remands requiring the Director to give “particular consideration” to certain
evidence, including (1) the February 2000 statement from D.A. McLain, M.D., (2) an August 2001
hearing transcript, and (3) lay statements indicating that the appellant is unable to obtain or maintain
gainful employment due to his back disability. R. at 325; see R. at 324-25, 573, 596-99. The
Director’s 2012 decision denying an extraschedular rating did not discuss this evidence. See R. at
236-39. “When the Director acts in the context of extraschedular ratings, he is taking the place of
an RO adjudicator,” and the Director must comply with the same requirements as the RO.
Kuppamala v. McDonald, 27 Vet.App. 447, 455-56 (2015). The Director’s lack of comment on the
relevant evidence frustrates judicial review and deprives the appellant of the Director’s “expertise”
on extraschedular matters. Id. at 458; see Gilbert, 1 Vet.App. at 57. It is unclear whether the
Director considered this evidence and chose not to discuss it or whether the evidence was not
considered by the Director.
Accordingly, the Court holds that the Board erred and provided inadequate reasons or bases
for denying referral for determination of an extraschedular rating, and the Court will vacate the
Board’s decision in this regard and remand it for further proceedings consistent with the foregoing
analysis.
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III. CONCLUSION
After consideration of the appellant’s and Secretary’s briefs, and a review of the record on
appeal, the Board’s July 9, 2015, decision as to the assignment of a 40% schedular rating for a low
back disability is AFFIRMED. The Board’s decision as to denial of an extraschedular rating is
VACATED and the matter is REMANDED for further proceedings consistent with this decision.
The Board’s decision as to denial of an effective date prior to February 11, 2000, for an increased
rating for a low back disability; an effective date earlier than June 9, 2008, for his TDIU; effective
dates earlier than May 13, 2011, for bilateral leg radiculopathy; and disability ratings in excess of
20% for bilateral leg radiculopathy is DISMISSED.
DATED: December 29, 2016
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
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