Veteranclaims’s Blog

June 8, 2020

Single Judge Application; joint disabilities; 38 C.F.R. § 4.59 requires that “certain range of motion testing be conducted whenever possible in cases of joint disabilities.” Correia v. McDonald, 28 Vet.App. 158, 164, 168(2016). The regulation specifies that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” 38 C.F.R. § 4.59 (2019). “If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary . . . , he or she should clearly explain why that is so.” Correia, 28 Vet.App. at 170;

Filed under: Uncategorized — Tags: — veteranclaims @ 8:44 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1017
NICHOLAS C. MAZZA, 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 Nicholas C. Mazza appeals an October 19, 2018, Board
of Veterans’ Appeals decision that denied benefits for a chronic back condition, hypertension,
diverticulitis, gastrointestinal bleeding, gastrointestinal polyps, gastrointestinal hemorrhoids,
constipation, an enlarged prostate, urinary retention, anemia, high cholesterol, and residuals of a
right finger injury with slight hypoalgesia.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 erred regarding the veteran’s right finger
disability and chronic back condition. We find that the Board erred regarding the right finger
disability because it provided an inadequate statement of reasons or bases and relied on a medical
examination that did not address functional loss. As for the chronic back condition, the Board erred
1 The Board also remanded the matters of sleep apnea, a heart disorder, an acquired psychiatric disorder
including post-traumatic stress disorder and major depressive disorder, diabetes mellitus, hyperthyroidism, diabetic
neuropathy of the bilateral upper and lower extremities, diabetic kidney disease, peripheral vascular disease of the
bilateral upper and lower extremities, and erectile dysfunction. 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”).
2
in finding that the duty to assist had been met because certain medical records were not obtained.
The remaining disabilities here on appeal are inextricably intertwined with the remanded matters.
Therefore, we will set aside that part of the Board’s decision that is before us on appeal, and remand
those matters for further proceedings.
I. ANALYSIS
A. Right Finger Disability
Mr. Mazza argues that the Board inadequately addressed his right finger disability and
relied on an examination that is inadequate because it failed to address functional loss. We agree.
The duty to assist includes the duty to provide an adequate medical examination. 38 U.S.C.
§ 5103A; Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007). A medical examination or opinion is
adequate “where it is based upon consideration of the veteran’s prior medical history and
examinations,” Stefl, 21 Vet.App. at 123; “describes the disability, if any, 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) (per curiam).
Additionally, 38 C.F.R. § 4.59 requires that “certain range of motion testing be conducted
whenever possible in cases of joint disabilities.” Correia v. McDonald, 28 Vet.App. 158, 164, 168(2016). The regulation specifies that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” 38 C.F.R. § 4.59 (2019). “If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary . . . , he or she should clearly explain why that is so.” Correia, 28 Vet.App. at 170
.
The Board must support its determinations with a statement of reasons or bases that is
adequate to enable an appellant to understand the precise basis for its decision, as well as to
facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527
(1995). To comply with this requirement, the Board must analyze the credibility and probative
value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide
the reasons for its rejection of any 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).
3
The Board’s determination that the duty to assist has been met is a finding of fact subject
to the “clearly erroneous” standard of review. Nolen v. Gober, 14 Vet.App. 183, 184 (2000). Under
that standard, we may not reverse a Board finding unless, on review of the entire record, we are
left with the definite and firm conviction that a mistake has been committed. Deloach v. Shinseki,
704 F.3d 1370, 1378-79 (Fed. Cir. 2013). The appellant bears the burden of showing that the Board
finding is clearly erroneous. Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc); aff’d per
curiam, 232 F.3d 908 (Fed. Cir. 2000).
Here, the Board denied a compensable disability rating for the veteran’s crushed right finger
disability “because there is no objective evidence of limitation of motion or other symptoms that
would approximate limited motion.” Record (R.) at 22. Mr. Mazza, however, has consistently
reported that his disability caused him to be unable to grip objects with his right hand. R. at 1099.
The Board failed to address this evidence or explain why the veteran’s symptoms would not serve
as “other symptoms that would approximate limited motion.” R. at 22. Particularly because the
veteran’s disability is being rated by analogy, the Board’s failure to address this matter frustrates
judicial review and renders its statement of reasons or bases inadequate. See Allday, 7 Vet.App. at
527; Caluza, 7 Vet.App. at 506.
Furthermore, the Board should have obtained medical evidence consistent with 38 C.F.R.
§ 4.59, which states that “[t]he joints involved should be tested for pain on both active and passive
motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite
undamaged joint.” 38 C.F.R. § 4.59 (2019). The VA examination relied on by the Board does not
show that active, weight-bearing-like testing was performed to test the veteran’s gripping ability.
Nor does the examination address whether the veteran’s pain caused a limited range of motion
when compared with the corresponding joint on his opposite hand. Under Correia, such testing
should have been conducted or otherwise addressed by the examiner. Correia, 28 Vet.App. at 170.
Because the examination relied on by the Board did not address these matters, the Board’s finding
that the duty to assist had been met is clearly erroneous and will be reversed. See Nolen, 14
Vet.App. at 184.
Mr. Mazza thus meets his burden of proving error in the Board’s decision. See Hilkert, 12
Vet.App. at 151. Remand is warranted for the Board to provide an adequate statement of reasons
or bases and medical examination. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is
appropriate “where the Board has incorrectly applied the law, failed to provide an adequate
4
statement of reasons or bases for its determinations, or where the record is otherwise inadequate”);
see also Correia, 28 Vet.App. at 170 (remanding for the Board to obtain an adequate medical
examination). To the extent that the veteran makes additional arguments in favor of reversal, we
note that remand is the appropriate remedy when the Board has provided an inadequate statement
of reasons or bases. See Tucker, 11 Vet.App. at 374.
B. Chronic Back Disability
Mr. Mazza argues that the Board clearly erred in finding that the duty to assist was met
when the Board had not obtained certain VA medical records. The Secretary’s duty to assist
mandates assisting claimants in the development of their claims. 38 U.S.C. § 5103A. The Secretary
must make reasonable efforts to obtain evidence necessary to substantiate a claim for VA benefits,
38 U.S.C. § 5103A(a)(1), and “make efforts to obtain . . . VA medical records or records of
examination.” 38 C.F.R. § 3.159(c)(3) (2019). Under § 3.159(c)(3), VA is required to attempt to
obtain such records “without consideration of their relevance.” Sullivan v. McDonald, 815 F.3d
786, 792 (Fed. Cir. 2016). VA also has the duty to obtain medical records that are relevant on their
face. Moore v. Shinseki, 555 F.3d 1369, 1375 (Fed. Cir. 2009) (VA erred in not obtaining medical
records addressing the same disability for which the claimant was seeking compensation because
such records were facially relevant).
Here, as Mr. Mazza contends, the Board clearly erred in finding that the duty to assist had
been met. The record includes several references to VA “VistA” records that were referenced in,
and apparently attached to, medical records pertaining to the veteran’s chronic back disability. See
R. at 300-10, 379-80, 484. But these records are not included in the record before the agency and
the Board made no findings regarding their relevance. Although the Secretary speculates that these
records will not include relevant information, the missing records are VA documents pertaining to
the veteran’s back disability and, thus, should have been obtained by the Board. See Sullivan,
815 F.3d at 792; Moore, 555 F.3d at 1375. Accordingly, in view of the entire record, the Board’s
finding that the duty to assist had been met is clearly erroneous and will be reversed. See Nolen,
14 Vet.App. at 184.
C. Other Matters
Because the claims are being remanded, the Court need not address Mr. Mazza’s additional
arguments that would result in 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
5
to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”). Furthermore, the veteran’s claims for benefits for hypertension, diverticulitis,
gastrointestinal bleeding, gastrointestinal polyps, gastrointestinal hemorrhoids, constipation, an
enlarged prostate, urinary retention, anemia, high cholesterol, which he claims as secondary to the
chronic back disability, are inextricably intertwined with the remanded matters. See Gurley v.
Nicholson, 20 Vet.App. 573, 575 (2007) (recognizing validity of a judicial-economy remand when
two issues are inextricably intertwined).
In pursuing his claims on remand, the veteran will be free to submit additional argument
and evidence as to the remanded matters, 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 October 19, 2018, Board of Veterans’ Appeals decision
that addressed a chronic back condition, hypertension, diverticulitis, gastrointestinal bleeding,
gastrointestinal polyps, gastrointestinal hemorrhoids, constipation, an enlarged prostate, urinary
retention, anemia, high cholesterol, and residuals of a right finger injury with slight hypoalgesia is
SET ASIDE and the matter is REMANDED for further proceedings.
DATED: June 5, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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