Veteranclaims’s Blog

August 4, 2021

Single Judge Application; Chavis v. McDonough, which issued after the Board’s decision, the Court found that the Board had jurisdiction to consider the proper initial rating for the appellant’s radiculopathy in connection with his appeal of an increased rating for his low back disability rating, reaffirming that “VA’s consideration of . . . neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is . . . consistent with VA’s duty to sympathetically read pro se pleadings.” No. 18-2928, 2021 WL 1432578, at *12 (Vet. App. Apr. 16, 2021); VA’s duty to sympathetically read a claimant’s filings, but also with the VA Adjudication Procedures Manual, M21-1, which the Court noted directs adjudicators to consider a claimant’s request for benefits for “a new neurological complication” as a request for an increased rating for the underlying spine disability. Id. (citing VA ADJUDICATION PROCEDURES MANUAL, M21-1, pt. III, subpt. iv, ch. 4, § A.5);

Filed under: Uncategorized — Tags: — veteranclaims @ 6:31 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4445
BERNARD A. STEGMUELLER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Senior Judge: The appellant, Bernard A. Stegmueller, through counsel appeals an April 15, 2019, Board of Veterans’ Appeals (Board) decision that denied a disability rating for a back condition greater than 10% effective prior to October 25, 2018, and greater than 20% effective thereafter. Record of Proceedings (R.) at 5-17. This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter for readjudication consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from January 1962 to August 1966. R. at. 1926. After submitting an intention to file for compensation in December 2015, the appellant filed a claim for service connection for a back condition in March 2016. R. at 2192, 2182-85.
1 Judge Schoelen is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 04-21 (Jan. 4, 2021).
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In June 2016, the appellant submitted four buddy statements describing his back condition. R. at 2054 (stating the appellant had trouble with his back for more than 20 years and has a hard time getting out of cars and walking), 2055 (stating the appellant has problems going up and down stairs), 2057 (stating the appellant complained of back pain during service and sometimes had trouble walking postservice), 2058 (stating the appellant has had back trouble since service and some days “he could not sleep or hardly walk”).
In a July 2016 VA examination, the appellant reported flare-ups, as well as trouble getting out of bed and putting on shoes and socks. R. at 2017. He also reported waking often because of pain and complained of numbness and tingling radiating from his hips to his legs and feet. Id. The appellant’s ranges of motion (ROMs) were abnormal, with forward flexion to 75 degrees and extension to 20 degrees. Id. The examiner found that the appellant’s flare-ups did limit his functional ability but could not describe flare-ups in terms of ROM because “ROM is [the] same as above.” R. at 2019. The examiner noted no guarding or muscle spasm of the thoracolumbar spine. Id. The appellant’s deep tendon reflexes of the right and left knee were measured as hypoactive and he had signs and symptoms of radiculopathy. R. at 2019-21.
In July 2016, the VA regional office (RO) granted service connection for the back condition and right leg radiculopathy, assigning separate 10% ratings for each condition. R. at 1975-82, 1993-98. In November 2016, the appellant sought an increased rating for his back condition, submitting a disability benefits questionnaire (DBQ) completed by his VA physician. R. at 1965, 1953-63.
The November 2016 DBQ showed diagnoses of facet joint arthropathy and radiculopathy. R. at 1953. The examiner noted that flare-ups limited the appellant’s ability to lift anything, twist, drive, shop, cook, or do household tasks. R. at 1954. The appellant reported that his back “can throw out” and he can’t bend over. Id. While the examiner did not take initial ROM measurements, stating that he was “not trained for this,” he estimated ROM due to flare-ups or repeated use to be 30 degrees for forward flexion and 10-20 degrees for extension. R. at 1954, 1957. The examiner noted abnormal spine contour due to muscle spasm. R. at 1956. The examiner found that the functional impact of the appellant’s condition was an inability to stand longer than 15 minutes, sit longer than 30 minutes, and lift more than 25 pounds, and that he had difficulty twisting, bending, driving, and sleeping. R. at 1962. Concerning right leg radiculopathy, the examiner noted moderate
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intermittent pain, dull pain, and paresthesias or dysesthesias. R. at 1959-60. For left leg radiculopathy, the examiner noted mild paresthesias and/or dysesthesias and numbness. Id.
In a January 2017 back condition examination, the appellant reported pain at 5-10/10 in severity, resulting in difficulty sleeping. R. at 1967. He reported flare-ups and noted that his legs go numb when he drives. R. at 1768-69. ROM testing revealed flexion to 75 degrees and extension to 30 degrees. R. at 1769. The examiner noted pain during extension but concluded that it does not result in functional loss. Id. The examiner found that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare-ups, concluding that the examination was neither medically consistent nor inconsistent with the appellant’s statements describing functional loss during flare-ups. R. at 1770. He noted further that additional factors contributing to the disability included less movement than normal, instability of station, disturbance of locomotion, and interference with sitting and standing. Id. The examiner performed a sensory exam that revealed normal sensation to light touch, negative straight leg raise, and no signs or symptoms of radiculopathy. R. at 1771-72.
A January 2017 rating decision continued the 10% back condition rating and increased the right leg radiculopathy rating to 20%. R. at 1383-86. A March 2017 rating decision continued the back condition rating. R. at 1234-37. The appellant filed a Notice of Disagreement in December 2017 for his lower back, reporting that he “can’t sleep[,] can’t walk right[,] need[s] help walking[, and] can’t stand long.” R. at 1216.
A March 2018 letter from a registered nurse notes that for the past 20 years, the appellant has had severe pain and limited mobility, such that his ability to walk long distances is limited and he must use a cane. R. at 1092. In May and June 2018, the appellant submitted letters from four people describing his back issues. R. at 1089-91 (letter stating that the appellant has back pain that moves to his legs and affects his gait and causes him to lose balance), 1039 (letter reporting that the appellant struggles to bend over and does not sleep much), 1042 (letter stating that the appellant’s back pain causes him to fall and he has daily pain that makes sleeping difficult), 1043 (letter reporting that when appellant’s back occasionally gives out, he cannot move around or get up).
The RO issued a Statement of the Case in August 2018 continuing the back condition rating, and the appellant appealed to the Board. R. at 947-71, 591. In October 2018, the appellant sought an increased rating for right leg radiculopathy, as well as service connection for left leg
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radiculopathy. R. at 361. He also submitted a letter in which he reported constant back pain, numbness and pain in his legs, and falls resulting from his back giving out. R. at 363-64.
In an October 2018 VA back examination, the appellant reported that during flare-ups his back tightens when he stands and walks, his back gives out, and his left leg feels numb. R. at 302. The appellant reported being unable to jog, run, or walk more than 30 minutes without sitting down. Id. ROM testing revealed forward flexion to 90 degrees and extension to 30 degrees, with pain noted on both flexion and extension. R. at 303. The examiner reported that the appellant’s pain does not result in functional loss and that functional ability would also not be significantly limited with flare-ups, concluding that the examination was medically consistent with the appellant’s statements describing functional loss during a flare-up. R. at 303-04. The examiner noted that the appellant exhibited guarding and muscle spasms, which resulted in abnormal gait or abnormal spinal contour. R. at 304. The appellant showed mild right leg numbness, but no other symptoms of radiculopathy. R. at 306. The examiner concluded that the appellant’s back disability affects his ability to work. R. at 309.
An October 2018 VA treatment record noted that the appellant’s back pain was stable, and that he had no new weakness of legs, falls, numbness or paresthesias, but he had chronic paresthesias of the bottom of the feet. R. at 143-44.
A November 2018 rating decision continued a disability rating percentage of 10% for his right leg radiculopathy and denied service connection for left leg radiculopathy. R. at 219-21. A December 2018 rating decision increased the back condition rating to 20%, effective October 25, 2018. R. at 200-05.
On April 15, 2019, the Board denied an initial rating greater than 10%, effective prior to October 25, 2018, and a rating greater than 20% effective thereafter, for the appellant’s back condition. R. at 5-17. This appeal followed.
II. ANALYSIS
The appellant’s spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2020). Under this formula, a 10% disability rating is warranted when there is
[f]orward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; . . . or, muscle spasm, guarding, or localized tenderness not
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resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.
Id. A 20% rating is warranted when there is
[f]orward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; . . . or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; . . . or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
Id.
As with any material issue of fact or law, the Board must provide a statement of the reasons or bases for its determination “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). 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). It must also discuss all provisions of law and regulation that are made “potentially applicable through the assertions and issues raised in the record.” Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991).
A. Rating Prior To October 25, 2018
The Board found that a disability rating greater than 10% was not warranted prior to October 25, 2018, because the July 2016 and January 2017 VA examinations showed forward flexion of the lumbar spine up to 75 degrees with combined lumbar spine motion of 215 degrees. R. at 15. The Board found that the November 2016 DBQ’s findings of flexion limited to 30 degrees did not accurately depict the severity of the appellant’s disability because the findings were not corroborated by the other evidence of record. Id. The Board found no other objective evidence demonstrating greater impairment of range of motion and “no evidence of muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour at any time prior to October 25, 2018.” R. at 16.
The appellant argues that when the Board concluded there was no evidence of severe muscle spasm, when addressing the appellant’s rating before October 25, 2018, the Board failed to address adequately favorable evidence, despite the November 2016 DBQ showing severe muscle
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spasm. Appellant’s Brief (Br.) at 17. The Secretary concedes that remand is warranted because the Board did not discuss the November 2016 DBQ’s finding of muscle spasm, which is favorable evidence of a higher, 20% rating under DC 5237. Secretary’s Br. at 10-12.
The Court agrees with the parties that the Board erred by failing to address the November 2016 finding of abnormal spinal contour due to muscle spasm, which is evidence favorable to a higher rating under DC 5237. See Caluza, 7 Vet.App. at 506. Accordingly, the Court will remand the claim for a rating greater than 10% effective prior to October 25, 2018, for the Board to consider this evidence. See 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”).
B. Rating After October 25, 2018
The Board noted that the 20% rating was granted “based upon a finding by the October 2018 VA examiner that the [v]eteran’s back disability causes guarding and muscle spasms resulting in abnormal gait or abnormal spinal contour.” R. at 16. The Board found that a disability rating greater than 20% is not warranted after October 25, 2018, because there is no evidence of forward flexion to 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. Id. The Board acknowledged the appellant’s significant pain, including flare-ups, but found “no evidence to corroborate additional functional limitations” that would warrant a rating above 20%. R. at 16-17. The Board concluded that the appellant “is already being adequately compensated for pain and the resulting functional loss,” so a rating above 20% is not warranted. R. at 17.
The appellant argues that the October 2018 VA examination was inadequate because the examiner provided an inadequate rationale as to the impact of the appellant’s flare-ups. Appellant’s Br at 27. He asserts that although the examiner noted that the appellant reported flare-ups, the examiner concluded that the flare-ups do not significantly limit functional ability, contrary to the appellant’s reports. Id.
The Secretary counters that the October 2018 examiner took the appellant’s symptoms into account when determining that the appellant’s functional ability is not significantly limited by flare-ups. Secretary’s Br at 29.
Although the Board discussed the October 2018 examiner’s findings, the Board did not discuss the adequacy and probative value of the examination. See R. at 16-17. Specifically
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regarding the severity of the appellant’s flare-ups, evidence in the record shows that the appellant’s “back would go out occasionally, and at those times he isn’t able to get up or move around.” R. at 1043. However, the October 2018 examiner found no additional limit to the appellant’s functional ability with flare-ups. R. at 304. The Board’s lack of reasons or bases to support its reliance on the October 2018 examiner’s conclusion regarding flare-ups frustrates the Court’s review. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (“[T]he evaluation and weighing of evidence are factual determinations committed to the discretion of the factfinder–in this case, the Board.”); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”); see also 38 U.S.C. § 7261(c). Remand is warranted for the Board to provide an adequate statement of reasons of bases as to the adequacy of the October 2018 examination in light of the evidence regarding the severity of his flare-ups. See Tucker, 11 Vet.App. at 374.
C. Neurological Impairments
The Board noted that the rating schedule for spine injuries “instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code.” R. at 16. The Board explained that “the [v]eteran is now in receipt of a separate 10 percent rating[] for radiculopathy of the right lower extremity” but “has not asserted, nor does the record indicate, that he suffers from any additional neurological impairment due to his service-connected residuals of back injury.” Id.
The appellant argues that the Board failed to address an increased rating for right leg radiculopathy and a separate rating for left leg radiculopathy. Appellant’s Br. at 18-23. The Secretary responds that the Board was not required to address radiculopathy because it was not on appeal. Secretary’s Br. at 20-26.
In Chavis v. McDonough, which issued after the Board’s decision, the Court found that the Board had jurisdiction to consider the proper initial rating for the appellant’s radiculopathy in connection with his appeal of an increased rating for his low back disability rating, reaffirming that “VA’s consideration of . . . neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is . . . consistent with VA’s duty to sympathetically read pro se pleadings.” No. 18-2928, 2021 WL 1432578, at *12 (Vet. App. Apr. 16, 2021).
The Court in Chavis based its jurisdictional determination on “lay and medical evidence throughout the appeal period of the lumbar spine claim,” which it found “reflect[ed] neurologic
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signs and symptoms that have now been attributed to the bilateral lower extremity radiculopathy,” id. at *11, as well as the fact that “VA ha[d] considered [the appellant’s] reports of neurologic sequelae as part of his claim seeking increased compensation for his back disability,” id. at *12, noting especially that the Board had “specifically directed [a] VA examiner to identify all neurologic manifestations of the service-connected back condition and to render an opinion regarding the severity of any identified manifestations,” id. The Court further explained that its conclusion was consistent not only with, as noted above, VA’s duty to sympathetically read a claimant’s filings, but also with the VA Adjudication Procedures Manual, M21-1, which the Court noted directs adjudicators to consider a claimant’s request for benefits for “a new neurological complication” as a request for an increased rating for the underlying spine disability. Id. (citing VA ADJUDICATION PROCEDURES MANUAL, M21-1, pt. III, subpt. iv, ch. 4, § A.5).
Here, as in Chavis, the Board had a duty to sympathetically read the appellant’s pro se pleadings. See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (finding that representation by a veterans’ service organization was insufficient to disqualify a veteran as a pro se claimant). Although the Board mentioned neurological impairment in the decision on appeal, it is unclear whether the Board found that it had jurisdiction over the issues of right and left leg radiculopathy. See Allday, 7 Vet.App. at 527. Therefore, remand is warranted for the Board to provide an adequate statement of reasons or bases that addresses the potential applicability of Chavis in the first instance and adjudicate claims for any neurological components of the appellant’s spine disability. See Tucker, 11 Vet.App. at 374; see also Hensley, 212 F.3d at 1263-64 (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, 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.”).
D. Remand
Given this disposition, the Court need not, at this time, address any other arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board
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rule against him [or her].”). On remand, the appellant is free to present additional argument and evidence to the Board in accordance with Kutscherousky 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] 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.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court, and the parties’ pleadings, the April 15, 2019, Board decision denying a rating greater than 10% effective prior to October 25, 2018, and greater than 20% effective thereafter is VACATED, and the matter is REMANDED for further proceedings consistent with this decision.
DATED: June 28, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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