Veteranclaims’s Blog

June 3, 2020

Single Judge Application; Swain v. McDonald, 27 Vet.App. 6 219, 225 (2015); effective date for a disability evaluation may be earlier than the date of the medical report on which that disability rating is based; “[T]he effective date for an increased rating, indeed, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of [disability] can be ascertained.”; Court rejected the mechanical assignment of an effective date based on a date of examination. Id. at 224 (citing DeLisio v. Shinseki, 25 Vet.App. 45, 58 (2011) (“[A]ll facts should be examined to determine the date that [the veteran’s disability] first manifested.”));

Filed under: Uncategorized — veteranclaims @ 12:21 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0020
EDDIE A. JAMES, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Chief Judge: Veteran Eddie A. James appeals through counsel a September
19, 2018, Board of Veterans’ Appeals (Board) decision denying entitlement to a disability
evaluation in excess of 10% for a service-connected back disability prior to May 5, 2018, and in
excess of 20% thereafter; and an evaluation in excess of 10% for left lower extremity radiculopathy
prior to May 5, 2018, and in excess of 20% thereafter. 1 Record (R.) at 4-14. The Board also
awarded a separate 10% evaluation for right lower extremity radiculopathy, effective May 5,
2018.2 Id. For the reasons set forth below, the Court will set aside the September 2018 Board
decision and remand the matters for further development, if necessary, and readjudication
consistent with this decision.3
1 To the extent that these determinations are favorable to the veteran, the Court will not disturb them. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable
to a claimant made by the Board pursuant to its statutory authority.”).
2 To be clear, although the Board determined that a 10% evaluation, but no higher, was warranted, Mr. James
challenges only the effective date of the Board’s award of a separate evaluation for right lower extremity radiculopathy;
he does not challenge the Board’s finding that a higher evaluation was not warranted. Because Mr. James has not
challenged this portion of the Board decision, the appeal as to this matter will be dismissed. See Pederson v.
McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued and
dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same).
3 In January 2020, this case was referred to a panel for resolution. On further consideration, the panel was
2
I. FACTS
Mr. James served honorably on active duty in the U.S. Air Force from August 1974 to
December 1974, R. at 3784; and in the U.S. Army from February 1975 to February 1978; from
January 1987 to October 1996; from January 2007 to July 2007; from May 2008 to September
2008; and from January 2009 to December 2010, R. at 1936, 1947, 1984, 1989, 3110, 3841. In
April 2011, he filed a claim for service connection for, inter alia, a back condition. R. at 3266.
Following a July 2011 VA examination, R. at 3182-88, a VA regional office (RO), in a
November 2011 decision, granted service connection for his back condition with a 10% evaluation
effective January 1, 2011. R. at 3115-22.
At an April 2013 physical medicine rehabilitation visit, the provider noted Mr. James’s
report of 4 out of 10 pain, with 7 out of 10 pain between appointments worsened by holding
prolonged positions or cold and rainy weather. R. at 2533. Thoracic and lumbar spine active range
of motion (ROM) testing showed right and left flexion to 25 degrees, right and left rotation to 25
degrees, and extension to 25 degrees. Id.
In July 2013, a VA physician noted the veteran’s report of painful episodes 3-4 times per
year, lasting five days at a time, with pain radiating down the right lower extremity to the posterior
thigh. R. at 532. During those periods, Mr. James described severe 10 out of 10 pain, with difficulty
getting out of bed. Id. On review of x-rays and based on the veteran’s description of the pain, the
physician noted “it appears to be a disc herniation touching a nerve root on the right around L4.”
R. at 536.
In November 2014, a VA examiner diagnosed degenerative disc disease (DDD) of the
lumbar spine with intervertebral disc syndrome (IVDS) involving the left L4-5 nerve roots. R. at

The veteran described his condition as worsening, with limited pain extending from his hip
to the back of his knee. Id. Mr. James also indicated that his movement was limited and at times
he was unable to move and would stay in bed for three days. Id. ROM testing demonstrated forward
flexion to 65 degrees. Id. The examiner noted extension to 20 degrees. R. at 1624. Right and left
lateral flexion, and right and left lateral rotation, were all limited to 25 degrees. Id. The veteran
reported pain with all ROM testing. R. at 1623-24. Mr. James was able to perform repetitive-use
testing with no additional loss of motion. R. at 1624-25. A sensory examination revealed decreased
dissolved by separate order issued earlier today.
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sensation to light touch in the left foot and toes. R. at 1627. The examiner also diagnosed mild
radiculopathy on the left side and IVDS with no incapacitating episodes in the previous 12 months.
R. at 1627-28.
In January 2015, the RO issued a decision granting service connection for radiculopathy of
the left lower extremity and assigned a 10% evaluation effective November 10, 2014, the date of
the VA examination. R. at 1381-82.
In March 2018, Mr. James testified at a Board hearing that his lumbar spine had initially
worsened around 2010 and further deteriorated after 2014. R. at 320-31. He described radiating
pain in both legs as well as throbbing pain and numbness in his back, sometimes extending all the
way down to his toes; he rated his pain 8 out of 10. R. at 322. He reasserted that he experienced
incapacitating episodes 3-5 times a year, with each episode lasting 3-4 days. Id.
In April 2018, Mr. James sought emergency treatment for low back pain. R. at 74-77. He
was diagnosed with acute exacerbation of chronic low back pain with right leg sciatica; the
physician also noted limited ROM and muscle spasm in the lumbar spine. R. at 76-77.
In May 2018, a VA examiner diagnosed lumbar spine IVDS and DDD with mild
radiculopathy of the right side and moderate radiculopathy of the left side. R. at 55-61. The
examiner noted the veteran’s report of flare-ups and that when pain was at its peak the veteran is
unable to move. R. at 56. ROM testing demonstrated limitations in forward flexion to 60 degrees,
extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation
to 30 degrees. R. at 57. The examiner noted pain on examination of forward flexion and extension
causing functional loss, as well as moderate lumbar paravertebral tenderness from IVDS. Id. The
examiner also indicated that weakness and fatigue contributed to functional loss. R. at 58. There
was no evidence of additional loss of function or ROM after repetitive use testing, although the
examiner noted that the veteran would lose an additional 5 degrees of motion in each aspect during
flare-ups and after repetitive use. R. at 57-58. A sensory examination showed decreased sensation
to light touch on the left lower leg/ankle. R. at 60. The veteran reported severe intermittent pain
and paresthesias associated with radiculopathy in both lower extremities, as well as mild numbness
in the left lower extremity and decreased bilateral lower extremity reflexes. Id.
In the September 2018 Board decision on appeal, the Board denied entitlement to an
evaluation in excess of 10% for a service-connected back disability prior to May 5, 2018, and in
excess of 20% thereafter; an evaluation in excess of 10% for left lower extremity radiculopathy
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prior to May 5, 2018, and in excess of 20% thereafter; and an evaluation in excess of 10% for right
lower extremity radiculopathy, with an effective date of May 5, 2018. R. at 4-14. This appeal
followed. While this appeal was pending, Mr. James filed a motion for oral argument.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. James’s appeal is timely and the Court has jurisdiction to review the September 2018
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determination of the appropriate degree of disability and the proper effective
date for disability compensation are findings of fact subject to the “clearly erroneous” standard of
review. 38 U.S.C. § 7261(a)(4); see Evans v. West, 12 Vet.App. 396, 401 (1999), Smallwood v.
Brown, 10 Vet.App. 93, 97 (1997); Hanson v. Brown, 9 Vet.App. 29, 32 (1996). “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)); see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) (explaining that the
Court “is not permitted to substitute its judgment for that of the [Board] on issues of material fact”
and therefore may not overturn the Board’s factual determination “if there is a ‘plausible’ basis in
the record for [those] determinations”).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its degree-of-disability and effective-date determinations with adequate reasons or
bases that enables the claimant to understand the precise basis for those determinations and
facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Cantrell v. Shulkin, 28 Vet.App. at 382,
388 (2017); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze
the credibility and probative value of evidence, account for evidence that it finds persuasive or
unpersuasive, and provide reasons for its rejection of 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).
When VA seeks to obtain a medical opinion, the Secretary must ensure that the opinion
provided is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical opinion is
adequate “where it is based upon consideration of the veteran’s prior medical history and
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examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes the disability . . . in
sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed
one’,” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and “sufficiently inform[s] the
Board of a medical expert’s judgment on a medical question and the essential rationale for that
opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). See Acevedo v. Shinseki, 25 Vet.App.
286, 293 (2012) (“[A]n adequate medical report must rest on correct facts and reasoned medical
judgment so as [to] inform the Board on a medical question and facilitate the Board’s consideration
and weighing of the report against any contrary reports.”); Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with
supporting data, but also a reasoned medical explanation connecting the two.”).
III. ANALYSIS
Prior to the Board’s September 2018 decision, Mr. James was in receipt of a 10% evaluation
for the back disability and a 10% evaluation for associated left lower extremity radiculopathy. In
its decision, the Board granted a 20% evaluation, but no higher, for the back disability effective
May 5, 2018; granted a 20% evaluation, but no higher, for the left lower extremity radiculopathy
effective May 5, 2018; and awarded a separate 10% evaluation, but no higher, for right lower
extremity radiculopathy, effective April 23, 2017. Mr. James objects to the propriety of the back
and left lower extremity evaluations across the appeal period and of the assignment of May 5,
2018, for the increases to 20%. Regarding the right lower extremity, he objects only as to the
effective date of the separate evaluation. The Court will address each of these arguments in turn.
A. Effective Dates

Back and Radiculopathy Disability Evaluations Before May 5, 2018
As with an original claim for service connection, the effective date of an award of an
increased evaluation will generally be the date of receipt of the claim for increase or the date
entitlement arose, whoever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(2) (2019). However,
increased compensation may date up to one year before the date of receipt of the claim for increase
if it is factually ascertainable that an increase in disability occurred within that 1-year period.
38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
In Swain v. McDonald, the Court held that the effective date for a disability evaluation may be earlier than the date of the medical report on which that disability rating is based. 27 Vet.App.
6
219, 225 (2015) (“[T]he effective date for an increased rating, indeed, as well as for an initial rating
or for staged ratings, is predicated on when the increase in the level of [disability] can be
ascertained.”). The Court rejected the mechanical assignment of an effective date based on a date
of examination. Id. at 224 (citing DeLisio v. Shinseki, 25 Vet.App. 45, 58 (2011) (“[A]ll facts
should be examined to determine the date that [the veteran’s disability] first manifested.”)).

Mr. James asserts that the Board clearly erred in relying on the May 5, 2018, VA
examination to assign an effective date for the evaluations because the examiner did not opine as
to when Mr. James’s disabilities actually worsened. Appellant’s Brief (Br.) at 7-11. As a result, he
argues, the Board incorrectly assigned the effective date based on the date of the VA examination.
Id. at 7. The Secretary contends that the 2018 VA examination was adequate to address when the
veteran’s disabilities reached the 20% level, and that the Board plausibly found that it was factually
ascertainable that Mr. James’s disabilities reached the 20% level at the time of the 2018 VA
examination. The veteran’s argument is persuasive.
Mr. James points to two pieces of evidence in support of his contention that the Board
failed to discuss favorable evidence that his disabilities had worsened before the May 5, 2018,
examination: his testimony at the Board hearing in March 2018, affirming that his overall condition
had worsened since his November 2014 VA examination, see R. at 326; and records from an April
2018 emergency department treatment for low back pain, see R. at 74-77. Appellant’s Br. at 11;
Reply Br. at 8-10. Mr. James also described the extent of his flare-ups and seeking emergency care
for pain on multiple occasions during the 2018 VA examination. See R. at 56.
In its decision, the Board determined that a 20% evaluation for the back disability was
warranted under the General Rating Formula for Diseases and Injuries of the Spine, see 38 C.F.R.
§ 4.71a (2019), based on limited lumbar spine motion, effective May 5, 2018, because it was at
that time ROM testing revealed flexion to 60 degrees with pain. R. at 8. Regarding the veteran’s
left leg radiculopathy, the Board found that a 20% evaluation was warranted given the veteran’s
severe intermittent pain, severe paresthesias and dysesthesias, and mild numbness. R. at 12-13.
The Board’s analysis as to the effective dates of each disability relied on the May 2018 VA
examiner’s findings. See, e.g., R. at 8 (back condition: “[ROM] at that time revealed flexion to 60
degrees with pain, which warrants a [20% evaluation];” R. at 12 (radiculopathy: “[T]he examiner
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documented symptoms of severe intermittent pain bilaterally, severe paresthesias and/or
dysesthesias bilaterally, and mild numbness in the left lower extremity only.”).
By mechanically assigning the date of the VA examination as the effective date of the
veteran’s disabilities, the Board here committed the error identified in Swain—namely, it failed to
consider whether other lay or medical evidence of record prior to the most recent examination
showed an increase in the veteran’s level of disability. See Swain, 27 Vet.App. at 224-25. The
Court concludes that the Board erred to the extent that it determined that the only relevant evidence
as to the worsening of the veteran’s conditions was the May 2018 examination and, therefore, that
there was no basis upon which to grant earlier effective dates for the staged disability evaluations.
See Caluza, 7 Vet.App. at 506. Remand is warranted for the Board to consider Swain as well as
the other lay and medical evidence of record when determining the appropriate evaluations and
their effective dates for the entire period prior to May 5, 2018. See Tucker, 11 Vet.App. at 374.

Right Lower Extremity Radiculopathy Evaluation from April 23, 2017
In its decision, the Board assigned an effective date of April 23, 2017, for the award of a
separation evaluation for right lower extremity radiculopathy based on VA emergency department
records from that date that document a diagnosis of bilateral radiculopathy. R. at 11. The Board
found that April 23, 2017, was the earliest date that a separate evaluation could be awarded because
the medical evidence prior to that date did not contain persuasive diagnosis of radiculopathy of the
right leg; despite the veteran’s documented complaints of pain, there was no earlier objective
evidence of neurological impairment. Id.
Mr. James argues that the Board impermissibly made medical findings when it found that
“medical evidence prior to April 23, 2017, did not contain a persuasive diagnosis of radiculopathy
of the right leg.” Appellant’s Br. at 12-15 (citing R. at 10-11). The Secretary responds that the
Board properly analyzed the lay and medical evidence of record to determine the appropriate
effective date for the separate evaluation for right lower extremity radiculopathy, and thus the
Board’s conclusion did not amount to an impermissible medical determination. Secretary’s Br. at
12-15.
Mr. James principally objects to the Board’s analysis of his documented radicula r
symptoms. R. at 14-15. He points out that the Board failed to consider evidence from a July 2013
pain consultation, where the physician noted a history of radiating pain through the right lower
extremity. Appellant’s Br. at 15 (citing R. at 532); see R. at 536 (“From x-ray and description of
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the pain it appears to be a disc herniation touching a nerve root on the right around L4.”). He also
objects to the Board’s assessment of a December 2013 private treatment record, which documented
radicular symptoms. Appellant’s Br. at 12-13. In that assessment, the Board concluded that the
sciatica diagnosis in that record “appear[ed] to be based off the [v]eteran’s reports rather than
testing” and “merely noted sciatica based on [the veteran’s] complaints.” R. at 10.
The Court concludes that the Board failed to provide adequate reasons or bases for its
determination that the record does not contain a “persuasive diagnosis of radiculopathy” prior to
April 2017. R. at 11. First, the December 2013 physician’s notes indicate that the reason for the
visit was “tingling” in the legs and documented that the veteran “attributed [those symptoms] to
his sciatica.” R. at 2257. However, the physician also listed sciatica as a chronic problem requiring
medication and indicated as part of the veteran’s diagnostic history that Mr. James had undergone
an x-ray of the spine. Id. The Board appears to have mischaracterized the December 2013 evidence
of Mr. James’s condition as documenting only Mr. James’s subjective complaints, and not his
medical history as recorded by a treating physician. Second, the Board failed to address medical
evidence from July 2013 that reflects radicular symptoms. See R. at 532, 536. In so doing, the
Board failed to properly account for evidence favorable to the veteran. See Allday, 7 Vet.App. at
527; Caluza, 7 Vet.App. at 506. Accordingly, the Court concludes that the Board failed to provide
adequate reasons or bases for its determination that there was no medical evidence of neurologic
impairment prior to April 23, 2017. See Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57;
see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate
remedy “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”). Therefore,
a remand of this claim is warranted.
B. Increased Evaluations

Increased Evaluation for a Back Disability
Mr. James’s back disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code
(DC) 5243, which pertains to IVDS. DC 5243 provides that an evaluation for IVDS is to be
provided either under the General Rating Formula for Diseases and Injuries of the Spine or under
the Formula for Rating IVDS Based on Incapacitating Episodes, “whichever method results in the
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higher evaluation when all disabilities are combined under [38 C.F.R.] § 4.25.” 38 C.F.R. § 4.71a,
DC 5243.4
Under the General Rating Formula, a 10% evaluation is provided where, inter alia, forward
flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees;
combined ROM of the thoracolumbar spine is greater than 120 degrees but not greater than 235
degrees; or muscle spasm, guarding, or localized tenderness does not result in abnormal gait or
abnormal spinal contour. Id. A 20% evaluation is warranted when, inter alia, forward flexion of
the thoracolumbar spine is greater than 30 degrees but not greater than 120 degrees; or muscle
spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such
as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40% evaluation is warranted when,
inter alia, there is forward flexion of the thoracolumbar spine limited to 30 degrees or less or
favorable ankylosis of the entire thoracolumbar spine. Id. The next higher evaluation of 50% is
warranted when there is evidence of unfavorable ankyloses of the entire thoracolumbar spine, and
a 100% evaluation is warranted when there is evidence of unfavorable ankyloses of the entire
spine. Id. These evaluations are applied without regard to whether “symptoms such as pain . . . ,
stiffness, or aching are present.” Id.
Mr. James argues that the Board clearly erred in relying on the November 2014 and May
2018 examinations to deny an increased evaluation for a back disability because those
examinations were inadequate. Appellant’s Br. at 19-22. Specifically, he contends that the
examiners failed to adequately address functional loss due to pain on flare-ups and to comply with
the Court’s holding in Sharp v. Shulkin, 29 Vet.App. 26 (2019). Id. at 19-20. The Secretary argues
that the Board provided adequate reasons or bases for relying on adequate VA examinations.
Secretary’s Br. at 16-18. The veteran’s arguments are persuasive.
In DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995), the Court held that musculoskeletal
DCs based on limitation of motion—such as DC 5243—do not subsume the factors listed in
38 C.F.R. §§ 4.40 and 4.45. Thus, when evaluating musculoskeletal disabilities under such DCs,
even when evaluating by analogy, in addition to considering measured limitation of motion, VA
4 In its decision, the Board found that an evaluation under the Formula for Rating IVDS Based on
Incapacitating Episodes was not warranted. R. at 8. Mr. James does not argue that he is entitled to a higher evaluation
for the back disability based on incapacitating episodes or that the Board erred in making such a finding. Therefore,
the Court deems abandoned any argument regarding entitlement to an increased evaluation based on the Formula for
Rating IVDS Based on Incapacitating Episodes and will not address that issue further. See Grivois v. Brown,
6 Vet.App. 136, 138 (1994) (explaining that the Court has discretion to deem abandoned issues not argued on appeal).
10
must assess functional loss due to pain on movement and diminished excursion, strength, speed,
coordination, and endurance. 38 C.F.R. § 4.40 (2019). Medical opinions addressing the symptoms
and severity of musculoskeletal disabilities must take into account these considerations, including
during flare-ups, and, to the extent possible, express any functional loss in terms of the degree of
additional range-of-motion loss so VA can assign a schedular evaluation that accurately reflects
the overall functional loss. See DeLuca, 8 Vet.App. at 206-07. A DeLuca analysis is appropriate
when evaluating musculoskeletal disabilities under the General Rating Formula for Diseases and
Injuries of the Spine.
A VA examination that fails to take into account the factors listed in §§ 4.40 and 4.45,
including those experienced during flare-ups, is inadequate for evaluation purposes. Id. For an
examination not conducted during a flare-up to comply with § 4.40, the examiner must obtain
information about the severity, frequency, duration, precipitating and alleviating factors, and
extent of functional impairment of flares from the veteran and offer a flare opinion based on an
estimate derived from information procured from relevant sources, including the lay statements of
the veteran. Sharp, 29 Vet.App. at 34-35. The examiner’s determination in that regard “should, if
feasible, be portrayed in terms of the degree of additional [ROM] loss due to pain on use or during
flare-ups.” DeLuca¸ 8 Vet.App. at 206 (emphasis added) (internal quotation marks and alteration
omitted).
Contrary to the Secretary’s arguments, the Court concludes that the VA examinations are
inadequate for evaluation purposes. In its decision, the Board found both the November 2014 and
May 2018 examiners’ opinions to be probative of the veteran’s limitations during flare-ups. R. at 8.
A review of the record does not support the Board’s findings as to the adequacy of these
examinations.
First, the November 2014 examiner recorded Mr. James’s description of his back pain:
“[t]he condition has worse[ned], limited movement, at times unable to move and will stay in bed
for 3 days.” R. at 1709. Despite noting the veteran’s report that at times his pain would leave him
bed-bound, the examiner indicated that Mr. James did not experience flare-ups and solicited no
further information from the veteran. Id. The Court is unable to discern the logic between the
veteran’s description of the periods where he was confined by pain to bed and the examiner’s
conclusion that there is “NO additional limitation of functional ability of the thoracolumbar spine
during flare-ups,” R. at 1716. See Monzingo, 26 Vet.App. at 106 (holding that, although a medical
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examination report need not “explicitly lay out the examiner’s journey from facts to a conclusion”
to be adequate, the Court must be able to discern the examiner’s reasoning from that report to
sanction the Board’s reliance on it); Nieves-Rodriguez, 22 Vet.App. at 301.
Second, the May 2018 examiner documented the veteran’s flare-ups, noting that they
occurred 4-5 times a year and that “[w]hen the pain is at its peak, he is unable to move.” R. at 56.
Despite this, the examiner opined that during a flare-up, the veteran’s forward flexion would be
reduced by only 5 degrees. R. at 57-58. As with the 2014 examination, the Court in this case is
unable to discern the logic between the veteran’s description of being immobilized by pain 4-5
days a year and the examiner’s opinion that flare-ups result in a mere 5-degree reduction in forward
flexion. See Monzingo, 26 Vet.App. at 106.
The examiners’ seemingly conflicting findings as to the nature, symptoms, presentation,
and disabling effects of Mr. James’s service-connected back condition demonstrate that the
examiners did not provide an accurate picture of that disability, and their failure to resolve these
inconsistencies makes it impossible to understand the reasoning for their conclusions. See
Monzingo, 26 Vet.App. at 105; Nieves-Rodriguez, 22 Vet.App. at 301; 38 C.F.R. § 4.2 (2019). The
foregoing error is prejudicial because an adequate VA medical examination and opinion that
complies with Sharp may entitle Mr. James to a higher schedular spine evaluation. See 38 C.F.R.
§ 4.71a. The examiners’ assessment of Mr. James’s service-connected disability was therefore
insufficient to facilitate a fully informed adjudication by the Board, rendering both examinations
inadequate for evaluation purposes. See Stefl, 21 Vet.App. at 123; Ardison, 6 Vet.App. at 407
(holding that the Board errs when it relies on an inadequate medical examination report or opinion).
Remand is warranted to remedy this error. See Tucker, 11 Vet.App. at 374.

Increased Evaluation for Left Lower Extremity Radiculopathy from May 5, 2018
Mr. James is currently in receipt of a 20% evaluation for left lower extremity radiculopathy,
effective May 5, 2018. Mr. James’s radiculopathy is evaluated under 38 C.F.R. § 4.142a, DC 8520,
which directs that radiculopathy be evaluated at 10% for mild incomplete paralysis, 20% for
moderate incomplete paralysis, 40% for moderately severe incomplete paralysis, 60% for severe
incomplete paralysis with marked muscular atrophy, and 80% for complete paralysis.
In its decision, the Board asserted:
A 60[% evaluation] under [DC] 8520 is warranted for severe incomplete paralysis
with marked muscular atrophy; it is therefore implied that the 40[% evaluation]
requires some muscular atrophy or impaired muscle strength. As the [v]eteran has
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neither impaired muscle strength nor muscle atrophy in the left side, the Board finds
that the evidence supports the May 2018 examiner’s conclusion that his left[-]sided
radiculopathy is moderate at worst, and a rating higher than 20[%]is not warranted.
R. at 13.
Mr. James argues that the Board provided inadequate reasons or bases for denying a 40%
evaluation under DC 8520 when it erroneously concluded that the 40% evaluation “requires some
muscular atrophy or impaired muscle strength,” essentially importing one of the criteria relevant
to a 60% evaluation into the 40% criteria. Appellant’s Br. at 16-19. The Secretary concedes that
insofar as the Board read the requirement for muscular atrophy or impaired muscle strength into
DC 8520’s 40% criteria, the Board erred in providing inadequate reasons or bases and remand is
warranted. Secretary’s Br. at 15-16.
By concluding that a 40% evaluation requires evidence of muscular atrophy or impaired
muscle strength, the Board erroneously grafted on to the 40% evaluation an additional layer of
limitation that is not present in the regulation. See Lyles v. Shulkin, 29 Vet.App. 107, 117 (2017)
(concluding that the Board erred when it “read into [the regulation] nonexistent diagnostic
criteria”); see also Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (concluding that the Board
“erred in applying a standard that exceeded that set forth in the relevant evaluation criteria”);
Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) (same).
Moreover, it appears that the Board’s weighing of the evidence in this case was tainted by
this erroneous view. See R. at 13. Specifically, the Board’s conclusion cites to the absence of
evidence of impaired muscle strength or muscle atrophy in the left side to support its conclusion
denying an evaluation in excess of 20%. In light of the Board’s inclusion of the requirement for
muscular atrophy or impaired muscle strength into the 40% criteria, the Court is not convinced
that the Board’s ultimate conclusion is otherwise correct.
Because the Board provided inadequate reasons or bases and judicial review is frustrated,
see Gilbert, 1 Vet.App. at 57, remand of the left lower extremity radiculopathy claim for the period
from May 5, 2018, is warranted, see Tucker, 11 Vet.App. at 374.
Given this disposition, the Court need not address Mr. James’s other arguments. The
veteran is free, on remand, to present those arguments, as well as any additional arguments and
evidence, to the Board in accordance with Kutcherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order). See 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 Board’s]
13
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
expeditious manner in accordance with 38 U.S.C. § 7112.
C. Motion for Oral Argument
As a final matter, the Court notes that Mr. James filed a motion for oral argument. After
reviewing the motion, and because the law is dispositive in this matter, the Court is not convinced
that oral argument would materially assist in the disposition of this appeal and will deny the
motion. See Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per curiam); Mason v.
Brown, 8 Vet.App. 44, 59 (1995); see also U.S. Vet. App. R. 34(b) (“Oral argument normally is
not granted on . . . matters being decided by a single Judge.”).
IV. CONCLUSION
Upon consideration of the foregoing, Mr. James’s motion for oral argument is denied.
Those portions of the September 19, 2018, Board decision that denied higher evaluations for back
and left lower extremity radiculopathy disabilities and failed to assign a separate evaluation for the
right lower extremity radiculopathy disability prior to April 23, 2017, are SET ASIDE and those
matters are REMANDED for development and readjudication consistent with this decision. The
balance of the appeal is DISMISSED.
DATED: May 29, 2020
Copies to:
Mark R. Lippman, Esq.
VA General Counsel (027)




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