Veteranclaims’s Blog

June 22, 2020

Single Judge Application; in evaluating the severity of a disability, it is legal error for the Board to consider effects of medication on a disability when those effects were not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet.App. 56, 62 (2012). Further, “the Secretary has demonstrated in other DCs that he is aware of how to include the effect of a medication as a factor to be considered when rating a particular disability.” Id.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-7017
JEFFREY K. STANNARD, 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: U.S. Navy veteran Jeffrey K. Stannard appeals through counsel that part of an August 17, 2018, Board of Veterans’ Appeals decision denying (1) an initial disability rating greater than 10% for degenerative joint disease of the lumbar spine, (2) an initial disability rating greater than 10% for left lower extremity radiculopathy, (3) an initial disability rating greater than 10% for right lower extremity radiculopathy, and (4) entitlement to special monthly compensation (SMC) for aid and attendance.1 Record (R.) at 4-26. The appellant argues that the Board erred by (1) relying on inadequate examinations for the appellants lumbar spine and left and right lower extremity radiculopathy conditions, (2) failing to ensure substantial compliance with a prior remand, and (3) failing to provide an adequate statement of reasons or bases for its reliance on the inadequate examinations and its determination that the appellant’s radiculopathy was “wholly sensory”; the appellant also argues that the matter of SMC is inextricably intertwined with the matters of the appellant’s lumbar spine and left and right radiculopathy. Appellant’s Brief at 1-
1 The Board also denied service connection for a bilateral eye disability, a bilateral ear disability, and an initial disability rating higher than 30% for diverticulitis and lymphocytic colitis with constipation. The appellant does not challenge these determinations and the Court deems that the matters are abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that, where an appellant abandons an issue or claim, the Court will not address it).
2

  1. For the following reasons, the Court will set aside that part of the Board’s August 2018 decision on appeal and remand the set aside matters for readjudication.
    I.
    The Veterans Administration was established in 1930 when Congress consolidated the Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans’ Bureau into one agency. Act of July 3, 1930, ch. 863, 46 Stat. 1016. This Court was created with the enactment of the Veterans’ Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). Before the VJRA, for nearly 60 years VA rules, regulations, and decisions lived in “splendid isolation,” generally unconstrained by judicial review. See Brown v. Gardner, 513 U.S. 115, 122, (1994) (Souter, J.).
    Yet, the creation of a special court solely for veterans is consistent with congressional intent as old as the Republic. Congress first sought judicial assistance in affording veterans relief when it adopted the Invalid Pensions Act of 1792, which provided “for the settlement of the claims of widows and orphans . . . and to regulate the claims to invalid pensions,” for those injured during the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat 243 (1792) (repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). The act, though magnanimous, curtailed the power of the judiciary, by providing the Secretary of War the ability to withhold favorable determinations to claimants by circuit courts if the Secretary believed that the circuit court had erred in favor of the soldier based on “suspected imposition or mistake.” See id.
    3
    Chief Justice John Jay2 wrote a letter3 to President George Washington on behalf of the Circuit Court for the District of New York4 acknowledging that “the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.” See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792). Jay also noted that “judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature.” Id.
    This desire to effect congressional intent favorable to veterans has echoed throughout the Supreme Court’s decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S. Ct. 1696, 1709 (2009) (Souter, J., dissenting) (“Given Congress’s understandable decision to place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions”); see also Henderson v. Shinseki, 562 U.S. 428, 440, 131 S. Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is plainly reflected in “the singular characteristics of the review scheme that Congress created for the adjudication of veterans’ benefits claims,” and emphasizing that the provision “was enacted as part of the VJRA [because] that legislation was decidedly favorable to the veteran”).
    2 John Jay served as the first Secretary of State of the United States on an interim basis. II DAVID G. SAVAGE, GUIDE TO THE U.S. SUPREME COURT 872 (4th ed. (2004)). Although a large contributor to early U.S. foreign policy, Jay turned down the opportunity to assume this position full time. Id. at 872, 916. Instead, he accepted a nomination from President Washington to become the first Chief Justice of the Supreme Court on the day the position was created by the Judiciary Act of 1789. Id. Jay resigned his position in 1795 to become the second Governor of New York. Id. He was nominated to become Chief Justice of the Supreme Court again in December 1800, but he declined the appointment.
    3 The Supreme Court never decided Hayburn’s Case. See 2 U.S. (2 Dall.) 409, 409 (1792). The case was held over under advisement until the Court’s next session and Congress adopted the Invalid Pensions Act of 1793, which required the Secretary of War, in conjunction with the Attorney General, to “take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States.” Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793). Hayburn’s Case has often been cited as an example of judicial restraint, see, e.g., Tutun v. United States, 270 U.S. 568 (1926), but Supreme Court historian Maeva Marcus has argued persuasively to the contrary. See Maeva Marcus & Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 527. After all, Jay’s letter included by Dallas, the Court Reporter, in a note accompanying the decision to hold the matter under advisement, is nothing more than an advisory opinion that compelled Congress to change the law in order to make the judiciary the final voice on the review of a Revolutionary War veteran’s right to pension benefits. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.
    4 At this time, each Justice of the Supreme Court also served on circuit courts, a practice known as circuit riding. See RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND the FEDERAL SYSTEM (7th ed. 2015).
    4
    II.
    Justice Alito5 observed in Henderson v. Shinseki that our Court’s scope of review 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. at 432 n.2 (2011); see 38 U.S.C. § 7261. “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. The statutory command that a single judge6 may issue a binding decision is “unambiguous, unequivocal, and unlimited,” see Conroy v. Aniskoff, 507 U.S. 511, 514 (1993). The Court’s practice of treating panel decisions as “precedential” is unnecessary, particularly since the Court’s adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet.App. 1 (2019). We cite decisions from our Court merely for their guidance and persuasive value.
    III.
    The appellant served in the U.S. Navy from October 1972 to November 1975 as an engine mechanic. R. at 1954 (DD Form 214).
    IV.
    In August 2003, the appellant sought service-connected benefits for a lumbar condition. R. at 7787. He was granted a 10% disability rating for lumbar strain with radiculopathy in February 2006. R. at 7458. In November 2010, he was granted service connection for left and right lower extremity radiculopathy with separate 10% disability ratings and his lumbar spine disability rating was continued at the 10% rate for degenerative disc disease (DDD) of the lumbar spine with inter-vertebral disc syndrome (previously rated as lumbar strain with radiculopathy). R. at 6762.
    5Justice Alito was born in Trenton, New Jersey. SUPREME COURT OF THE UNITED STATES, https://www.supremecourt.gov/about/biographies.aspx (last visited Mar. 4, 2020). He began his career as a law clerk, then became assistant U.S. attorney for the district of New Jersey before assuming multiple positions at the Department of Justice. Id. He then became a U.S. attorney for the district of New Jersey. Id. Before his nomination for the Supreme Court, he spent 16 years as a judge on the U.S. Court of Appeals for the Third Circuit. Id. In 2005, President George W. Bush chose Alito to replace retiring Supreme Court Justice Sandra Day O’Connor. Id.
    6 From 1989 to 1993, West (the publisher of this Court’s decisions) published this Court’s single-judge decisions in tables in hard-bound volumes of West’s Veterans Appeals Reporter. Since 1993, West has published this Court’s single-judge decisions electronically only. I believe the Court should publish all its decisions in print form. See, e.g., Passaic Cty. Bar Ass’n v. Hughes, 401 U.S. 1003 (1971).
    5
    In April 2011, the appellant underwent an MRI. R. at 1534. The radiologist noted severe left and right foraminal stenosis at L4-L5 and probable impingement of the exiting L4 nerve roots within the thecal sac. R. at 1534.
    In February 2013, the appellant underwent a VA back examination. R. at 5186-5252. He reported daily flareups of his back condition and stated that there were days when he could not get out of bed, but he also stated that he was not completely bedridden. R. at 5188. The examiner noted functional loss as pain on movement of the lumbar spine on repetitive use. R. at 5191. Regarding radiculopathy, the examiner noted constant mild pain, mild paresthesia, and mild numbness of the left and right lower extremities. R. at 5194. There was decreased response to touch in the appellant’s right lower leg and foot. R. at 5206.
    In September 2014, the appellant reported that he could only walk from the bathroom to the bed and only after using a heating pad and taking medications to decrease his pain. R. at 1034.
    In April 2015, the appellant stated that after standing his back “locks up.” R. at 995.
    In March 2016, the appellant’s prescriptions were recorded as meloxicam, 7.5 milligrams daily; gabapentin 300 milligrams 3 times a day; and morphine sulphate for chronic pain. R. at 586.
    In September 2016, the appellant’s wife called his primary care provider and stated that the appellant’s low back pain was extreme and that an epidural steroid injection her husband received the prior month had not helped with his pain. R. at 721. The dosage of the appellant’s daily gabapentin prescription was increased and he was prescribed tramadol and a muscle relaxer. R. at 723.
    In December 2016, the appellant’s wife called the clinic again and stated that the appellant’s back pain was preventing him from sleeping and making him so distraught that she was afraid to leave him home alone. R. at 724.
    In July 2017, the appellant underwent a VA back examination. R. at 554-60. Regarding the history of the appellant’s back condition the examiner stated:
    Vet is [service connected] for lumbar strain. He worked as a diesel mechanic in the Navy. Post military he worked as a heavy equipment operator. He was in seen for low back pain in 1974. No neurological or degenerative changes found. He states he has constant pain every moment of every hour.
    R. at 555. The examiner noted that January 2017 x-rays revealed spondylosis throughout the lower thoracic and lumbar spine, “mild (DDD) at L2-3 and L3-4, moderate (DDD) at L5-S1, and severe DDD at L4-5 with degenerative changes of the facet joints in the lower lumbar segments.” R. at
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  2. She also noted that in January 2017 the appellant had ranked his pain as an 8. R. at 556. The examiner acknowledged the appellant’s current prescriptions, and stated “no change in pain medications was made. Patient can continue his pain medications as per his PCP.” R. at 556. She then noted that the appellant had not reported flare-ups, functional loss, or impairment of the lumbar spine. R. at 556. Upon examination, the appellant’s range of motion was “abnormal or outside of the normal range,” and that the appellant had forward flexion only to 70 degrees (out of 90) and left lateral flexion to 25 degrees (out of 30). R. at 556-57. However, the examiner also asserted that the decreased range of motion does not contribute to functional loss. R. at 557. As her only explanation for this finding she stated “[P]ain noted on exam, but does not result in/cause functional loss.” R. at 2106. The examiner found that the appellant had pain with forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. R. at 557. The examiner also noted pain with weight bearing and paraspinal tenderness along the lumbar spine. R. at 557. She wrote “not applicable” with respect to flare-ups. R. at 557. The examiner also found that the appellant had “less movement than normal due to ankyloses, adhesions, etc., [and] [i]nterference with sitting [and] standing.” R. at 558.
    Regarding the appellant’s radiculopathy, the examiner noted that the appellant had only mild paresthesia or dysesthesias and mild numbness of the left and right lower extremity. R. at558. She assessed the radiculopathy itself as mild. R. at 558. The appellant had hypoactive reflexes of the left and right ankles. R. at 558. The examiner then noted that there were no ankyloses of the spine. R. at 558. During the examination, the appellant reported that he regularly used a cane. R. at 558.
    V.
    In the decision on appeal the Board determined that increased ratings were not warranted for the appellant’s lumbar spine condition or his left and right lower extremity radiculopathy. R. at 11-17. The Board also found that SMC was not warranted based on the appellant’s need for aid and attendance or housebound status. R. at 20-23. The Board stated that it had considered the various VA examinations conducted throughout the appeal period to determine that the appellant’s “lumbar spine disability exhibited forward flexion at its worst, to 70 degrees.” R. at 16. The Board did not discuss the effects of the appellant’s medication on his back condition. See R. at 11-17. The Board then determined that the appellant’s left and right radiculopathy conditions “could be rated
    7
    a no more than mild or moderate because his impairment is wholly sensory.” R. at 17. The Board also determined that the appellant was “not competent to determine whether the appellant’s radiculopathy warrants the next higher rating.” R. at 17.
    VI.
    Diagnostic Code (DC) 5243 states that “with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10[%] evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. . . a 20[%] rating will be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees . . . 40[%] . . . for . . . forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable anklyosis of the entire thoracolumbar spine. A 50[%] rating is assigned of unfavorable anklyosis of the entire thoracolumbar spine. A 100[%] rating requires unfavorable anklyosis of the entire spine.” See 38 C.F.R. § 4.71a, DC 5243 (2019).
    In evaluating the severity of a disability, it is legal error for the Board to consider effects of medication on a disability when those effects were not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet.App. 56, 62 (2012). Further, “the Secretary has demonstrated in other DCs that he is aware of how to include the effect of a medication as a factor to be considered when rating a particular disability.” Id. (citations omitted).
    “Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or bases serves not only to help a claimant understand what has been decided, but also to ensure that VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.).
    VII.
    The Court concludes that the Board provided an inadequate statement of reasons or bases for denying a higher rating for the appellant’s back disability by relying on an examination that considered the ameliorative effects of the appellant’s medications. See 38 U.S.C. § 7104(d)(1); see also Jones, 26 Vet.App. at 62. Diagnostic Code 5243 does not contemplate the usage of
    8
    medication. See 38 C.F.R. § 4.71a. The appellant was taking various medications for his back condition daily, including narcotics. R. at 723. The Board relied on the July 2017 examination to determine that a higher rating was not warranted for the appellant’s back condition. R. at 16. But the July 2017 examiner considered the ameliorative effects of medication on the appellant’s back condition when she determined that the appellant had constant pain, but that the pain did not contribute to functional loss or flare-ups. The assignment of the rating therefore appears to have been based on impermissible consideration of the ameliorative effects of the appellant’s frequent use of medication. Remand is required for the Board to provide an adequate statement of reasons or bases for its assignment of a disability rating. See 38 U.S.C. § 7104(d)(1); see also Jones, 26 Vet.App. at 62.
    The Court also concludes that the Board provided an inadequate statement of reasons or bases for determining that the appellant’s radiculopathy was “wholly sensory.” 38 U.S.C.§7104(d)(1). The Board cites the guidance in the note in 38 C.F.R. § 4.124a and finds that the appellant’s radiculopathy does not warrant a higher rating in part because it is “wholly sensory.” R. at 17. However, the Board does not explain what the term “wholly sensory” means. See R. at 15-17. The Court has explained that nonsensory impairment can include symptoms such as “a reflex abnormality, [or] weakness or muscle atrophy.” Miller v. Shulkin, 28 Vet.App. 376, 380 (2017). Here, the appellant exhibited abnormal reflexes during the July 2017 examination. R. at 558. Because the Board failed to define “wholly sensory,” it is unclear to the Court how the Board determined that the appellant’s radiculopathy was wholly sensory. Remand is warranted for the Board to provide an adequate statement of reasons or bases for its determination of the severity of the appellant’ radiculopathy. 38 U.S.C. § 7104(d)(1).
    Finally, the Court concludes that the matter of SMC based on aid and attendance and housebound status is inextricably intertwined with the matters of an increased rating for the appellant’s lumbar condition and left and right lower extremity radiculopathy. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (holding that where a decision on one issue may have a “significant impact” upon another, the two claims are inextricably intertwined), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc), aff’d, 631 F.3d 1380, 1383 (Fed. Cir. 2011), vacated and remanded for reconsideration, 132 S. Ct. 75 (2011), modified, 26 Vet.App. 31 (2012). Any further development of the lumbar spine disability claim may be relevant to the
    9
    SMC determination, and thus may have a “significant impact” on that claim. Harris, 1 Vet.App. at 183.
    Because the Court is remanding the matters, 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 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.”).
    VIII.
    For the foregoing reasons, that part of the Board’s August 17, 2018, decision on appeal is VACATED and the matters are REMANDED for readjudication.
    DATED: June 19, 2020
    Copies to:
    Jerusha L. Hancock, Esq.
    VA General Counsel (027)
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