Veteranclaims’s Blog

July 9, 2021

Single Judge Application; Chavis v. McDonough; ankylosis requirement “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021);

Designated for electronic publication only
No. 19-4426
Before FALVEY, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

FALVEY, Judge: Army veteran Nereida Santos through counsel appeals a March 5, 2019,
Board of Veterans’ Appeals decision that, for the period before October 18, 2016, denied a
disability rating greater than 20% for service-connected degenerative disc and joint disease of the
lumbar spine (spine disability).1 This appeal is timely, the Court has jurisdiction to review the
Board’s decision, and single-judge disposition is appropriate. See 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 provided an adequate statement of reasons or
bases. Because the Board failed to address arguments and favorable evidence presented by the
veteran, its statement of reasons or bases is inadequate. We therefore will set aside the Board’s
decision and remand the matter for further proceedings.
1 The Board also addressed disability ratings for a post laminectomy spine disability and radiculopathy of the
left and right lower extremities. However, Ms. Santos raises no contentions of error about those parts of the Board’s decision, and the Court will not address them 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.”).
Ms. Santos’s sole argument on appeal is that the Board failed to provide an adequate
statement of reasons or bases because it did not address her contention that her symptoms more
nearly approximate the 40% disability rating. The veteran’s spine disability is rated under the
General Rating Formula for Diseases and Injuries of the Spine, which provides a 40% disability
rating when there is limited forward flexion of the thoracolumbar spine, defined as 30 degrees or
less, or favorable ankyloses of the entire thoracolumbar spine. 38 C.F.R. § 4.71a (2020). In Chavis,
which issued after the Board’s decision, we explained that the ankylosis requirement “can be met
with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021). As with all its material determinations of fact and law, the Board must support its disability rating determinations with a written statement of the reasons or bases that is understandable by the claimant and facilitates review by this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober, 14 Vet.App. 187, 188 (2000); discuss all issues raised by the claimant or the record, Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009); and address all provisions of law and regulation where they are made “potentially applicable through the assertions and issues raised in the record,” Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). Ms. Santos argued below that her symptoms were most analogous to the 40% disability rating. Record (R.) at 21-22. In a December 2018 statement, she informed the Board that, before she had surgery on her spine in 2016, she had suffered severe back pain daily. R. at 21. She said that her pain had failed to respond to conservative treatment measures and her doctors had recommended prosthetics. Id. She also noted extreme limitation of motion. R. at 21. The Board did not address these arguments or explain whether the veteran suffered severe pain and limitation of motion that were the functional equivalent of ankylosis. R. at 7-11. The Board’s failure to address the veteran’s argument and the favorable evidence renders its statement of reasons or bases inadequate. See Robinson, 21 Vet.App. at 552; Thompson, 14 Vet.App. at 188. Remand is warranted for the Board to provide an adequate statement of reasons or bases that addresses the favorable evidence and potential applicability of Chavis in the first instance. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating that remand is appropriate where the Board 3 has failed to provide an adequate statement of reasons or bases); see also Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (noting that, when a court of appeals reviews a lower court’s decision, it may remand the case if the previous adjudicator failed to make findings of fact essential to the decision); see also Davis v. McDonough,
Vet.App. , , No. 18-4371, 2021 WL
1975899 at *8 (May 18, 2021) (“In circumstances where there has been a new legal development
between the issuance of a Board decision and the submission of a case to the Court, we have the
discretion not to address the effect of that development and instead remand for the Board to
consider it in the first instance.”).
In pursuing her claim on remand, the veteran will be free to submit additional argument
and evidence as to the remanded matter, and she 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.”).
Based on the above, that part of the Board’s March 5, 2019, decision that addressed a
disability rating greater than 20% for the veteran’s spine disability is SET ASIDE and the matter
is REMANDED for further proceedings.
DATED: June 17, 2021
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)

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