Veteranclaims’s Blog

February 15, 2018

Single Judge Application; DeLuca v. Brown and its progeny; estimate any additional functional limitation;

Excerpt from decision below:

“Under DeLuca v. Brown and its progeny, a medical examiner must state an opinion on the additional functional limitation, if any, of a disability during flare-ups; estimate the functional limitation during flare-ups if feasible; or state why he or she cannot provide such an estimate for the opinion to be adequate for adjudication purposes. 8 Vet.App. 202, 206-07 (1995); Jones v. Shinseki, 23 Vet.App. 382, 392-94 (2010) (holding that an opinion was inadequate because the
examiner failed to explain why he or she could not provide an opinion as to the etiology of the veteran’s condition); 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]”); Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (applying Jones and DeLuca and finding an
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examination inadequate because the examiner failed to estimate the possible functional limitation during flare-ups).
At his January 2012 examination, appellant reported “that flare-ups impact the function of [his] cervical spine.” Record (R.) at 1132. When asked to provide a “description of the impact of flare-ups in [the veteran’s] own words,” the examiner noted “limited concentration due to neck pain.” Id. The only discussion of functional loss due to appellant’s cervical spine disability concerned repetitive-use testing. Id. at 1134.
The Board clearly erred by relying on the January 2012 opinion. The opinion notes that appellant reported he suffers from flare-ups yet failed to provide any of the possible opinions under DeLuca and its progeny. No opinion was provided as to the functional limitation, if any, of appellant’s cervical spine during flare-ups. See DeLuca, 8 Vet.App. at 206-07; Mitchell, 25 Vet.App. at 44. The examiner didn’t estimate any additional functional limitation or explain why he or she could not do so. See Sharp, 29 Vet.App. at 32.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1528
CRISANTO A. BATO, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Appellant Crisanto A. Bato, a United States Marine Corps veteran, appeals through counsel a March 24, 2017, Board of Veterans’ Appeals decision denying him increased ratings for both a cervical spine disability and a left ankle disability.1 This appeal was timely filed and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the Board’s decision and remand the matter for further proceedings.
I. ANALYSIS
Appellant argues the Board clearly erred by relying on several inadequate medical
examinations. Appellant’s Brief (Br.) at 5-13. The Court considers each disability in turn.
A. Cervical Spine Disability
Appellant first argues the Board clearly erred by relying on a January 2012 medical
examination because the examiner failed to express an opinion on whether appellant’s cervical
1 The Board also remanded the issues of service connection for an acquired psychiatric disorder, anxiety disorder, depressive disorder, gastrointestinal disability, erectile dysfunction, sleep disorder, hypertension, and left knee disability. Accordingly, these issues are not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (holding that a Board remand is not a final decision over which this Court has jurisdiction).
2
spine pain could significantly limit his functional ability during a flare-up. Appellant’s Br. at 5-11.
The Court agrees.
The Secretary’s duty to assist includes “providing a medical examination or obtaining a medical opinion when such an examination is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d). When the Secretary elects to provide a medical examination in a serviceconnection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet.App. 303, 311-12 (2007); Stegall v. West, 11 Vet.App. 268, 270-71 (1998) (remanding where a VA medical examination was “inadequate for evaluation purposes”); see also Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 301 (2008) (“The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion.”). A medical examination is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting
Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). Whether a medical examination is adequate is a question of fact, which the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97, 103 (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)).
Under DeLuca v. Brown and its progeny, a medical examiner must state an opinion on the additional functional limitation, if any, of a disability during flare-ups; estimate the functional limitation during flare-ups if feasible; or state why he or she cannot provide such an estimate for the opinion to be adequate for adjudication purposes. 8 Vet.App. 202, 206-07 (1995); Jones v. Shinseki, 23 Vet.App. 382, 392-94 (2010) (holding that an opinion was inadequate because the
examiner failed to explain why he or she could not provide an opinion as to the etiology of the veteran’s condition); 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]”); Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (applying Jones and DeLuca and finding an
3
examination inadequate because the examiner failed to estimate the possible functional limitation during flare-ups).
At his January 2012 examination, appellant reported “that flare-ups impact the function of [his] cervical spine.” Record (R.) at 1132. When asked to provide a “description of the impact of flare-ups in [the veteran’s] own words,” the examiner noted “limited concentration due to neck pain.” Id. The only discussion of functional loss due to appellant’s cervical spine disability concerned repetitive-use testing. Id. at 1134.
The Board clearly erred by relying on the January 2012 opinion. The opinion notes that appellant reported he suffers from flare-ups yet failed to provide any of the possible opinions under DeLuca and its progeny. No opinion was provided as to the functional limitation, if any, of appellant’s cervical spine during flare-ups. See DeLuca, 8 Vet.App. at 206-07; Mitchell, 25 Vet.App. at 44. The examiner didn’t estimate any additional functional limitation or explain why he or she could not do so. See Sharp, 29 Vet.App. at 32. Therefore, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is warranted “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”).

B. Left Ankle Disability
Appellant’s other argument again concerns the adequacy of a medical examination
regarding flare-ups, except with regard to his ankle disability. He argues the Board clearly erred
by relying on a January 2012 medical examination because the examiner failed to express an
opinion on whether appellant’s ankle disability could significantly limit his functional ability
during a flare-up. Appellant’s Br. at 11-13. Again, the Court agrees.
At his January 2012 examination, appellant reported “that flare-ups impact the function of
[his] ankle.” R. at 1125. When asked to provide a “description of the impact of flare-ups in [the
veteran’s] own words,” the examiner only noted “limited standing and walking.” Id. No opinion
was provided as to any possible additional functional limitation during flare-ups. Just as the
opinion regarding appellant’s cervical spine disability, the examiner only discussed additional
functional limitation with regard to repetitive-use testing. Id. at 1127. Accordingly, remand is
warranted for the same failure to comply with DeLuca and its progeny as discussed above. See
Tucker, 11 Vet.App. at 374.
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Given this disposition, the Court need not address the remaining arguments and issues
raised by appellant at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001). On remand,
appellant is free to submit additional evidence and argument, including the arguments raised in the
briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam), and the Board must consider any such evidence or argument submitted, 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 decision,” Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991), and the Board must proceed expeditiously, in accordance with
38 U.S.C. §§ 5109B and 7112.
II. CONCLUSION
After consideration of the parties’ briefs and the record, the Board’s March 24, 2017,
decision denying appellant increased ratings for both a cervical spine disability and a left ankle
disability is SET ASIDE and REMANDED for further proceedings consistent with this decision.
DATED: February 13, 2018
Copies to:
John S. Berry, Esq.
VA General Counsel (027)

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