Veteranclaims’s Blog

February 26, 2020

Single Judge Application; 38 C.F.R. § 4.124a; Diagnostic Code (DC) 8520 (2019) does not define “moderate,” “moderately severe,” or “severe,” or provide criteria by which to determine the severity of a particular disability; lack of objective criteria for differentiating between the specified severity levels means that . . . evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level; Spellers v. Wilkie, 30 Vet.App. 211, 219 (2018);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:59 pm

Excerpt from decision below:

“Mr. Pennington argues that the Board provided an inadequate statement of reasons or bases because it did not adequately discuss favorable evidence or define the terms it used to deny a higher disability rating. The Board rated Mr. Pennington’s radiculopathy under Diagnostic Code (DC) that provision provides that a 20% disability rating is appropriate for “[m]oderate” incomplete paralysis, a 40% disability rating is appropriate when incomplete paralysis is “[m]oderately severe,” and a 60% disability rating is warranted when incomplete paralysis is “[s]evere, with marked muscular atrophy.” 38 C.F.R. § 4.124a, DC 8520 (2019). However, the regulation does not define “moderate,” “moderately severe,” or “severe,” or provide criteria by which to determine the severity of a particular disability. See id. “This lack of objective criteria for differentiating between the specified severity levels means that . . . evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” Spellers v. Wilkie, 30 Vet.App. 211, 219 (2018). Thus, we held that the use of a cane or walker is contemplated by the schedular rating criteria listed in DC 8520 rather than the extraschedular evaluation criteria of 38 C.F.R. § 3.321(b). Id. at 220.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-5600
LARRY E. PENNINGTON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

FALVEY, Judge: Army veteran Larry E. Pennington appeals an August 2, 2018, Board of
Veterans’ Appeals decision that denied a disability rating greater than 20% for radiculopathy of the left and right lower extremities.1 This appeal is timely, the Court has jurisdiction to review the Board’s decision, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board inadequately explained why a higher disability
rating was not warranted. Because the Board did not address favorable evidence or explain how it defined the standards it used in assessing the severity of the veteran’s disability, its statement of reasons or bases is inadequate. Thus, we will set aside that part of the Board’s August 2, 2018, decision that addressed radiculopathy and remand the matter for further proceedings.
1 The Board also remanded the matters of a total disability rating based on individual unemployability and
special monthly compensation. The Court lacks authority to address these nonfinal matters. See 38 U.S.C. § 7252(a)
(Court has “exclusive jurisdiction” to review final Board decisions); Breeden v. Principi, 17 Vet.App. 475, 478 (2004)
(a Board remand “does not represent a final decision over which this Court has jurisdiction”). The Board also granted
a certificate of eligibility for specially adapted housing; we lack jurisdiction to address this favorable finding. See
Medrano v. Nicholson, 21 Vet.App. 165, 170-71 (2007) (the Court cannot reverse the Board’s favorable findings of
fact). And, the Board dismissed entitlement to a special home adaptation grant. As the veteran does not raise any
arguments about this part of the Board’s decision, we will not address it on appeal. See Pederson v. McDonald,
27 Vet.App. 276, 283 (2015) (en banc) (“[T]his Court, like other courts, will generally decline to exercise its authority
to address an issue not raised by an appellant in his or her opening brief.”).
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I. ANALYSIS
Mr. Pennington argues that the Board provided an inadequate statement of reasons or bases because it did not adequately discuss favorable evidence or define the terms it used to deny a higher disability rating. The Board rated Mr. Pennington’s radiculopathy under Diagnostic Code (DC) 8520. That provision provides that a 20% disability rating is appropriate for “[m]oderate” incomplete paralysis, a 40% disability rating is appropriate when incomplete paralysis is “[m]oderately severe,” and a 60% disability rating is warranted when incomplete paralysis is “[s]evere, with marked muscular atrophy.” 38 C.F.R. § 4.124a, DC 8520 (2019). However, the regulation does not define “moderate,” “moderately severe,” or “severe,” or provide criteria by which to determine the severity of a particular disability. See id. “This lack of objective criteria for differentiating between the specified severity levels means that . . . evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” Spellers v. Wilkie, 30 Vet.App. 211, 219 (2018). Thus, we held that the use of a cane or walker is contemplated by the schedular rating criteria listed in DC 8520 rather than the extraschedular evaluation criteria of 38 C.F.R. § 3.321(b). Id. at 220.
The Board must support its decision with a written statement of its reasons or bases that is understandable by the claimant and facilitates review by this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the reasons-or-bases requirement does not mandate that the Board provide precise definitions for terms left undefined by regulation, the requirement does mandate that the Board provide a statement of reasons or bases sufficiently detailed to enable the appellant and the Court to understand how the Board applied these terms. See Gilbert v. Derwinski, 1 Vet.App. 49, 57; see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). Thus, “VA’s failure to define [a relevant term] or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue.” Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017); see also Hood v. Brown, 4 Vet.App. 301, 302 (1993) (“[T]he Board did not provide reasons
or bases to explain why appellant’s impairment is ‘definite’ and not ‘considerable,’ ‘severe,’ or
‘total,'” and remanding the matter “for the Board to explain why appellant’s symptoms do not fit
the criteria for a higher rating”).
Here, the Board did not explain how it defined the terms “moderate, “moderately severe,”
and “severe” or address how it applied these terms to the veteran’s symptomatology. See R. at 4-
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Additionally, the Board did not address whether the veteran’s use of assistive devices warranted
a higher disability rating. See id. And, the Board did not discuss evidence that, after prolonged
sitting, Mr. Pennington’s feet felt like “dead weight,” causing him to fall or have trouble walking.
Record (R.) at 3053; see also R. at 613.
Because the Board did not address these matters, its statement of reasons or bases is not
detailed enough to be understood by the claimant or to permit judicial review. See Allday,
7 Vet.App. at 527; see also Cantrell, 28 Vet.App. at 392; Thompson v. Gober, 14 Vet.App. 187,
188 (2000) (Board must provide an adequate statement of reasons or bases “for its rejection of any
material evidence favorable to the claimant”). The Board’s failure to provide an adequate statement
of reasons or bases warrants remand. See Cantrell, 28 Vet.App. at 392; Tucker v. West, 11
Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has . . . failed to provide an
adequate statement of reasons or bases for its determinations”).
Because the claim is being remanded, the Court need not address Mr. Pennington’s
additional arguments that would lead to no broader remedy than a remand. See Mahl v. Principi,
15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need
to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”). In pursuing his claim on remand, the veteran will be free to submit additional argument
and evidence as to the remanded matter, and he has 90 days to do so from the date of the
postremand notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider
any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see
also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
II. CONCLUSION
Based on the above, that part of the Board’s August 2, 2018, decision that denied a
disability rating greater than 20% for radiculopathy is SET ASIDE and the matter is REMANDED
for further proceedings.
DATED: February 24, 2020
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Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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