Veteranclaims’s Blog

March 4, 2020

Single Judge Application; examiner must describe the functional effects of flareups; Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (citing VA CLINICIAN’S GUIDE § 0.1 (Mar. 2002); flareups affect ROM; Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011); 38 C.F.R. § 4.40 (2019);

Filed under: Uncategorized — veteranclaims @ 12:48 pm

Excerpt from decision below:

“The Court concludes that the Board erred in relying on the August 2012 VA examination
in its rating determination because the examination report did not adequately describe the functional effects of flareups. See Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (citing VA CLINICIAN’S GUIDE § 0.1 (Mar. 2002) (VA examiners must “estimate, ‘per veteran,’ to what extent, if any, [flareups] affect functional impairment”)). Although the appellant reported flareups of pain in his left elbow, the examiner did not estimate to what extent those flareups impaired the elbow’s functioning. See R. at 335. Remand is warranted for the Board to procure an examination that adequately describes the appellant’s left elbow condition during the first period on appeal. See Sharp, 29 Vet.App. at 32.”

===============

“Although the examiner found that flareups did not further limit the appellant’s ROM, it is unclear how the examiner determined this. No information is provided regarding where in the appellant’s range of motion his left elbow locked or whether his limitations regarding lifting, locking, and pain affected the functional use of the elbow. See Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011) (a VA examination report must evaluate whether there are limitations to “the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance’ ” (quoting 38 C.F.R. § 4.40 (2019))).”

====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0383
TERRY L. COOPER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: Veteran Terry L. Cooper appeals through counsel that part of a
September 20, 2018, Board of Veterans’ Appeals decision that denied entitlement to an initial disability rating in excess of 10% effective before January 25, 2013, and in excess of 20% thereafter, for a service-connected left elbow disability.1 Record (R.) at 4-19. The appellant argues that the Board provided an inadequate statement of reasons or bases for its rating determinations.
Appellant’s Brief at 4-16. For the following reasons, the Court will vacate that part of the
September 2018 Board decision on appeal and remand the matters for further development and readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations such as their widows, is
1 The Board granted service connection for a left shoulder disability secondary to a service-connected left elbow disability. The Court will not disturb this favorable finding. See Medrano v. Nicholson, 21 Vet.App. 165, 170
(2007). The Board remanded the matter of a sleep disability, to include as secondary to service-connected left elbow and left shoulder disabilities. This matter is not currently before the Court. See Hampton v. Gober, 10 Vet.App. 481, 482 (1997).
2
consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic, statutory construction concerning congressional
promises to veterans has been of great concern. “By the act concerning invalids, passed in June,
1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose
names are contained in a report previously made by him to congress. If he should refuse to do so,
would the wounded veteran be without remedy? Is it to be contended that where the law, in precise
terms, directs the performance of an act, in which an individual is interested, the law is incapable
of securing obedience to its mandate? Is it on account of the character of the person against whom
the complaint is made? Is it to be contended that the heads of departments are not amenable to the
laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in the U.S. Air Force from July 1979 until October
1979 as a security specialist, with subsequent periods of ACDUTRA and INACDUTRA. R. at 189
(DD Form 214); see also R. at 204. He injured his left elbow during service. R. at 408, 414.
At an August 2011 private treatment session, the appellant was diagnosed with posttraumatic arthritic change, limited range of motion (ROM) with arthrofibrosis, and loose bodies, all in or of the left elbow. R. at 286.
In October 2011, the appellant filed for benefits based on service connection for a left
elbow disability. R. at 435-40.
The appellant underwent a VA elbow and forearm conditions examination in August 2012.
R. at 334-43. He reported flareups and described them as causing constant pain. R. at 335. On
physical examination, the appellant’s left elbow flexion was limited to 100 degrees and extension
was limited to 30 degrees, with evidence of painful motion at 30 degrees of extension. R. at 336-37.

These results did not change after repetitive use testing. R. at 337-38. In the examination report,
3
however, the examiner marked that the appellant did experience pain upon movement of his left elbow. R. at 339.
In August 2012, the regional office (RO) granted service connection for post-traumatic left elbow arthritis and assigned a 10% rating effective October 2011. R. at 324-27 (citing 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5206 (2019)).
The appellant underwent a private elbow examination in January 2013. R. at 276-82. He
reported pain on movement and swelling in his left elbow. R. at 280. The physician marked that the appellant’s right elbow was limited to 135 degrees of flexion and 110 degrees of extension. R. at 276. The physician also marked that the appellant’s left elbow was limited to 140 degrees of flexion, with painful motion at 90 degrees. R. at 278. Left elbow extension was limited to 90 degrees with evidence of pain at 90 degrees. R. at 278. The appellant displayed weakened muscle movement during left elbow flexion. R. at 280. The physician wrote that the appellant was unable to lift, pull, or bend with his left elbow. R. at 282.
The appellant underwent a VA elbow and forearm conditions examination in November

R. at 258-61. He reported flareups associated with a “locking” of his left elbow and that
impeded tasks such as opening doors and lifting. R. at 258. The examiner opined that flareups did
not cause additional ROM loss. R. at 258. Both before and after repetitive-use testing, the
appellant’s left elbow was limited to 90 degrees of flexion and 30 degrees of extension, with objective evidence of pain at the end of the respective ranges of motion. R. at 258-59.
In January 2014, the RO increased the rating for post-traumatic left elbow arthritis to 20% effective January 2013. R. at 243-46.
In an October 2017 letter, the appellant asserted that a new medical examination was
necessary because the November 2013 VA examination was inadequate and was too old to assess of the current severity of the left elbow disability. R. at 35-36.
In September 2018, the Board denied entitlement to an initial disability rating in excess of 10% effective January 25, 2013, and in excess of 20% thereafter, for a service-connected left elbow disability. R. at 4-19. The Board found that the November 2013 VA ROM testing was adequate
for rating purposes, but that the January 2013 private examiner’s ROM testing was inadequate. R. at 8, 14-15. The Board reasoned that the January 2013 examiner’s right elbow results were
internally inconsistent and the left elbow results were inconsistent with the rest of the record. R. at
14-15. The Board determined that left elbow flexion results from the August 2012 and November
4
2013 VA examination supported ratings of 10% and 20%, respectively. R. at 15 (citing DC 5206).
Next, the Board found that factors such as pain, weakness, fatigue, flareups, and incoordination did not approximate a higher disability rating at any point of the appeal. R. at 15. This appeal ensued.
The Court concludes that the Board erred in relying on the August 2012 VA examination in its rating determination because the examination report did not adequately describe the functional effects of flareups. See Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (citing VA CLINICIAN’S GUIDE § 0.1 (Mar. 2002) (VA examiners must “estimate, ‘per [the] veteran,’ to what extent, if any, [flareups] affect functional impairment”)). Although the appellant reported flareups of pain in his left elbow, the examiner did not estimate to what extent those flareups impaired the elbow’s functioning. See R. at 335. Remand is warranted for the Board to procure an examination that adequately describes the appellant’s left elbow condition during the first period on appeal. See Sharp, 29 Vet.App. at 32.
The Court also concludes that the Board erred in failing to return the November 2013 VA
examination for clarification. See 38 C.F.R. § 4.2 (2019) (VA is required to “return the
report as inadequate for evaluation purposes” if the report “does not contain
sufficient detail”). The appellant reported flareups in his left elbow that caused locking and impeded his ability to lift and to open doors. R. at 258. Although the examiner found that flareups did not further limit the appellant’s ROM, it is unclear how the examiner determined this. No information is provided regarding where in the appellant’s range of motion his left elbow locked or whether his limitations regarding lifting, locking, and pain affected the functional use of the elbow. See Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011) (a VA examination report must evaluate whether there are limitations to “the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance’ ” (quoting 38 C.F.R. § 4.40 (2019))). Remand is necessary for the Board to return the November 2013 VA examination report
for clarification on the effects of the appellant’s flareups. See 38 C.F.R. § 4.2; see also Mitchell, 25 Vet.App. at 38.
Because the Court is remanding the appellant’s claim, it will not address the appellant’s
remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant
may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See
5
38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
For the foregoing reasons, that part of the September 20, 2018, Board decision on appeal
is VACATED and the matters are REMANDED for further development and readjudication.
DATED: March 3, 2020
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.