Veteranclaims’s Blog

August 30, 2018

Single Judge Application; § 3.350; reasons-or-bases requirement for examiner;

Excerpt from decision below:

“While there’s no reasons-or-bases requirement for examiners,8 their opinions must be detailed enough so that the Board’s decision is a fully informed one.9 Since the May 2013 examiner didn’t give any rationale for his conclusion, the Board couldn’t have done § 3.350’s required analysis without making independent medical judgements, something the Board isn’t permitted to do.10 Simply put, the regulation requires that one compare a veteran’s functional impairment to the functional impairment that would be present with an amputation and use of a prosthetic. The examiner here described appellant’s functional limitations but said nothing about limitations associated with an amputation and use of prosthetic. Without such comparison, the examiner’s conclusion isn’t sufficiently supported. Thus, remand is warranted.11
8 See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
9 See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994).
10 See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356(Fed. Cir. 1998).
11 See Tucker v. West, 11 Vet.App. 369, 374 (1998).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2279
JAMES H. OATES, APPELLANT,
V.
ROBERT L. WILKIE,
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: U.S. Air Force veteran James H. Oates suffers from DJD in his right hip
and he has a prosthetic right leg. He appeals a March 23, 2017, Board of Veterans’ Appeals decision
denying a disability rating higher than 30% before May 20, 2015, for DJD of the right hip; an
initial compensable rating for a right hip scar before May 13, 2016, and higher than 10% from that
date forward; an earlier effective date for the grant of service connection for a right hip scar; and
an earlier effective date for the grant of special monthly compensation (SMC) based on the loss of
use of his right leg.1
The first question in this appeal, which was timely filed and over which the Court has
jurisdiction,2 is whether the Board clearly erred in denying the veteran a higher DJD rating and an
earlier effective date for the grant of SMC by relying on a May 2013 medical opinion that failed
to describe the functional impairment that amputation of the veteran’s right leg and its replacement
with a prosthesis would produce. Because the applicable regulation requires the Board to consider
whether “effective function remains [in an affected appendage] other than that which would be
1 The Board also remanded the issue of entitlement to TDIU. So, that issue isn’t before the Court. See Breeden v.
Principi, 17 Vet.App. 475, 478 (2004) (per curiam order). Finally, the Board granted service connection for leg length
discrepancy, a favorable finding the Court can’t disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
2 See 38 U.S.C. §§ 7252(a), 7266(a).
2
equally well served by an amputation stump . . . with use of suitable prosthetic appliance,”3 the
Court holds that the May 2013 opinion lacked sufficient detail for the Board to make an informed
decision.
The second question in this appeal is whether the Board clearly erred in denying an earlier
effective date for the grant of service connection for a right hip scar when the Board failed to
account for the veteran’s lay report of pain. Because the Board failed to address his lay report of
pain whatsoever, the Court holds that the Board did clearly err. So, the Court sets aside the Board’s
decision and remands this matter to the Board for further adjudication. And because the veteran
didn’t present any argument as to the Board’s denial of an increased initial compensable rating for
his right hip scar, his appeal as to that claim is abandoned.4
I. ANALYSIS
A. Hip Disability
The Board denied the veteran an increased DJD rating under several different diagnostic
codes (DCs) and an earlier effective date for entitlement to SMC, relying at least in part on the
findings of a May 2013 medical examiner. That examiner found that the veteran’s hip disability
wouldn’t result in “functional impairment of an extremity such that no effective function remains
other than that which would be equally well served by an amputation with prosthesis.”5 38 C.F.R.
§ 3.350(a)(2)(i) requires the Board to consider whether “effective function remains [in an affected
appendage] other than that which would be equally well served by an amputation stump . . . with
use of suitable prosthetic appliance.”6 It doesn’t appear that § 3.350 should govern the veteran’s
increased-DJD-rating claim. Nonetheless, the Board clearly used § 3.350 to deny the veteran’s increased-rating claim.7 So, the insufficient medical opinion infects the Board’s decision as to both the increased-rating claim and the earlier SMC effective date claim.
3 38 C.F.R. § 3.350(a)(2)(i) (2018).
4 See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
5 Record (R.) at 623.
6 (emphasis added).
7 R. at 20 (“[T]he Board finds that a rating in excess of 30[%] is not warranted as the evidence does not show . . .
functional impairment of the right hip disability that would be equally well served by an amputation with prosthesis[.]”).
3
While there’s no reasons-or-bases requirement for examiners,8 their opinions must be detailed enough so that the Board’s decision is a fully informed one.9 Since the May 2013 examiner didn’t give any rationale for his conclusion, the Board couldn’t have done § 3.350’s required analysis without making independent medical judgements, something the Board isn’t permitted to do.10 Simply put, the regulation requires that one compare a veteran’s functional impairment to the functional impairment that would be present with an amputation and use of a prosthetic. The
examiner here described appellant’s functional limitations but said nothing about limitations associated with an amputation and use of prosthetic. Without such comparison, the examiner’s conclusion isn’t sufficiently supported. Thus, remand is warranted.11 The Board must obtain a clarifying opinion or a new opinion, or explain how it could rely on the May 2013 opinion despite its inadequacy.
Finally, the Court notes that the Board erred in referencing some August and September 2013 physical therapy records. 12 The Board discussed those records as negative evidence
concerning the veteran’s right hip disability but they actually address a right shoulder injury.13 This error should also be addressed on remand.
B. Right Hip Scar
The veteran also argues that the Board clearly erred14 in denying him an earlier effective
date for the grant of service connection for a right hip scar. He asserts that the Board failed to
adequately consider his lay report that he experiences scar pain two to three times weekly. The
Court agrees.
At a May 2016 examination, the veteran reported right hip scar pain 2-3 times weekly.15
Nonetheless, the Board denied an earlier effective date for his scar because “the scar was not shown
8 See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
9 See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994).
10 See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998).
11 See Tucker v. West, 11 Vet.App. 369, 374 (1998).
12 R. at 16.
13 R. at 535-36.
14 See Canady v. Nicholson, 20 Vet.App. 393, 398 (2006) (the Board’s determination of the effective date of a claim
is reviewed for clear error).
15 R. at 201.
4
to be manifested by pain or instability” before May 13, 2016. Yet, the veteran’s report of scar pain
was historical. He reported pain “2-3 times weekly.”16 The Board failed to address this statement
and explain why it didn’t warrant an earlier effective date.17 Thus, remand is warranted on this
issue.18
In pursuing his case on remand, the veteran is free to submit additional evidence and
argument, including the arguments raised in his briefs to this Court.19 The Board must consider
any such evidence or argument submitted.20 The Court reminds the Board that “[a] remand is
meant to entail a critical examination of the justification for the decision.”21 The Board must
proceed expeditiously.22
II. CONCLUSION
The Court SETS ASIDE the Board’s March 23, 2017, decision and REMANDS the matters
for further adjudication.
DATED: August 29, 2018
Copies to:
Ethan F. Maron, Esq.
VA General Counsel (027)
16 Id.
17 See Moore v. Derwinski, 1 Vet.App. 401, 404 (1991); see also Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
18 See Tucker, 11 Vet.App. at 374.
19 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, __ Vet.
App. __, __, No. 16-2826, 2018 WL 3357628, at *4-5 (U.S. Vet. App. July 10, 2018).
20 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
21 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
22 38 U.S.C. §§ 5109B, 7112.

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