Veteranclaims’s Blog

August 11, 2021

Single Judge Application; we have held that DC 8520 contemplates the use of assistive devices as part of its severity disability rating formula.See Spellers v. Wilkie, 30 Vet.App. 211, 218 (2018);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6167
CHARLES E. CURRY, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Charles E. Curry served the Nation honorably in the United
States Marine Corps. In this appeal, which is timely and over which the Court has jurisdiction,1 he
contests a July 11, 2019, decision of the Board of Veterans’ Appeals as amended on April 20, 2020,
that denied him a disability rating greater than 20% for his service-connected left lower extremity
(LLE) radiculopathy and entitlement to a total disability rating based on individual
unemployability (TDIU).2 Because the Board’s statement of its reasons or bases is inadequate to
enable meaningful judicial review concerning both claims, we will set aside the decision on appeal
and remand these matters for further proceedings.
I. ANALYSIS
It is well established that for all its findings on a material issue of fact and law, the Board
must support its decision with an adequate statement of reasons or bases that enables a claimant to
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) 5-28. The Board also dismissed appellant’s appeals concerning service connection for a left shoulder
disability and entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for convalescence following left
shoulder rotator cuff repair surgery. Appellant presents no argument concerning these matters. So, we deem any appeal
as to them abandoned. Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc).
2
understand the precise bases for the Board’s decision and facilitates review in this Court.3 If the
Board failed to do so, remand is appropriate.4 Appellant argues that the Board failed to live up to
its obligation to adequately support its decision for both claims on appeal. The Secretary agrees
that the Board’s decision is deficient with respect its denial of TDIU and that remand is appropriate
for that claim. However, he defends the Board’s denial of an increased disability rating for
appellant’s LLE radiculopathy. He urges that we affirm that portion of the Board’s decision.
As we will explain, we agree that the Board’s statement of reasons or bases for denying
appellant entitlement to TDIU is inadequate. In addition, we believe appellant has the better of the
argument concerning an increased disability rating for LLE radiculopathy. We will set aside the
Board’s decision in its entirety and remand this matter. We will discuss each claim in turn.
A. Increased Disability Rating for LLE Radiculopathy
The Board’s decision regarding the degree of disability under the rating schedule is a factual
finding that the Court reviews for clear error.5 The Court will reverse a factual finding of the Board
when, after reviewing the evidence of record, we are left with “‘a definite and firm conviction that
a mistake has been committed.'”6
Appellant’s LLE radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC)

  1. Under DC 8520, incomplete paralysis of the sciatic nerve is rated based on severity. A 10%
    rating is warranted for “mild” disability, a 20% rating is warranted for “moderate” disability; a
    40% rating is warranted for “moderately severe” disability, and a 60% rating is warranted for
    “severe” disability with marked muscular atrophy.7 A note preceding the various DCs under
    38 C.F.R. § 4.124a provides that “disability[ies] from the following diseases and their residuals
    may be rated from 10[%] to 100[%] in proportion to the impairment of motor, sensory, or mental
    function.”8 This note echoes another general principle for rating neurological conditions, that
    “[d]isability in this field is ordinarily to be rated in proportion to the impairment of motor, sensory,
    3 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
    4 Tucker v. West, 11 Vet.App. 369, 374 (1998).
    5 Tedesco v. Wilkie, 31Vet.App. 360, 363 (2019); Prokarym v. McDonald, 27 Vet.App. 307, 312 (2015); see also 38
    U.S.C. § 7261(a)(4); Gilbert, 1 Vet.App. at 53.
    6 Gilbert, 1 Vet.App. at 53 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
    7 38 C.F.R. § 4.124a, DC 8520 (2020).
    8 38 C.F.R. § 4.124a.
    3
    or mental function.”9 This note further provides that, when rating nerve injuries, “attention should
    be given to the site and character of the injury, the relative impairment in motor function, trophic
    changes, or sensory disturbances.” 10 Applying these principles, the Board determined that
    appellant’s LLE radiculopathy was no more than moderate and, therefore, it denied a disability
    rating greater than 20%.11
    The Board’s statement of its reasons or bases for denying appellant an increased disability
    rating for his LLE radiculopathy is inadequate. First, the Board never explains what it understands
    the key regulatory terms concerning severity such as “moderate” or “moderately severe” to mean.
    This Court has made clear that the Board cannot base its decisions on undisclosed standards.12
    Doing so amounts to nothing more than the Board saying that a veteran is not entitled to certain
    benefits “‘because I say so.'” 13 Thus, remand is warranted for the Board to explain what it
    understands these critical regulatory terms to mean and to apply them in accordance with that
    understanding.
    A second problem with the Board’s reasoning concerns medical opinions on which it relied.
    The Board placed a great deal of emphasis on VA medical examiners’ opinions describing the
    severity of appellant’s symptoms as being “moderate.” For example, when explaining why it
    afforded appellant’s lay statements relatively low probative value, the Board stated:
    In determining the actual degree of disability, however, contemporaneous medical
    records and objective examination by a health professional are more probative of
    the degree of the impairment. This is particularly so where the rating criteria
    require analysis of the clinically significant symptoms and objectively measurable
    criteria, but the [v]eteran is a layman.[14]
    Later in its decision, the Board made clear that it specifically relied on examiners’ ultimate
    assessment of the severity of appellant’s symptoms. For example, that Board stated:
    Both the August 2013 VA examiner and the May 2016 examiner specifically noted
    the reports of severe pain, but concluded that the overall severity was moderate.
    9 38 C.F.R. § 4.120 (2020).
    10 Id.
    11 See, e.g., R. at 14.
    12 See Tedesco, 31 Vet.App. at 366-67; Johnson v. Wilkie, 30 Vet.App. 245, 254-55 (2018).
    13 Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017) (quoting Hood v. Brown, 4 Vet.App. 301, 303 (1993)); see
    Johnson, 30 Vet.App. at 255.
    14 R. at 13-14.
    4
    Given the overall findings and the records discussed above and considering this
    was based on their in-person evaluations of the [v]eteran, this medical conclusion
    leads to the legal/factual finding that the severity under the regulations is
    “moderate.”[15]
    And in summary, the Board stated:
    More importantly, though, the VA examiners who have directly addressed the
    severity of the radiculopathy all have found that it is moderate in degree. The
    probative value of the [v]eteran’s own evaluations of his subjective symptoms (i.e.,
    severe pain) and his reports of associated functional difficulties do not outweigh
    the expert medical evidence in this case.[16]
    In short, there simply is no question that the Board focused on the VA examiners’ ultimate
    assessment of the severity of appellant’s radiculopathy symptoms.17
    The problem is that the ultimate assessment of the effect a claimant’s symptoms under the
    rating schedule is one for the Board not a medical professional.18 A medical examiner’s opinion is
    relevant to the Board’s adjudicative decision about rating, but that decision cannot be outsourced.19
    It is not clear whether the Board performed its adjudicative function by taking into account
    evidence from various VA medical examinations or whether it simply adopted the conclusions the
    examiners reached about the severity of appellant’s radiculopathy symptoms. We can’t review what
    the Board concluded because we can’t tell whether it independently concluded anything. And the
    Board made this problem worse because, as we’ve discussed, the Board did not explain what it
    independently understood the critical regulatory terms to mean. The Board must address this issue
    on remand.
    Before turning to a final reason why the Board’s statement of reasons or basis is inadequate,
    we pause to mention another point about the Board’s discussion of the medical evidence. As we
    discussed, the Board relied heavily on medical opinions that appellant’s radiculopathy symptoms
    led only to “moderate” impairment. One such opinion the Board discussed was prepared following
    15 R. at 14-15.
    16 R. at 15.
    17 And even more supports this assessment. See, e.g., R. at 14 (“The examiners provided summaries of the overall
    symptoms supporting their opinions that the severity was moderate.”), 15 (“The August 2013 examiner . . . concluded
    that the overall severity was moderate.”).
    18 See Delrio v. Wilkie, 32 Vet.App. 232, 242-43 (2019); Moore v. Nicholson, 21 Vet.App. 211, 219 (2007), rev’d sub
    nom. on other grounds, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).
    19 Id.
    5
    an August 2013 VA examination.20 When the Board afforded great weight to the examiner’s
    assessment, the Board did not mention that though the examiner assessed the symptoms as
    “moderate,” the form the examiner completed did not provide an option to assess the symptoms as
    “moderately severe.”21 That omission might prove highly significant because the 40% disability
    rating is one tied to moderately severe symptoms.22 The Board failed to recognize this issue and
    factor it into its discussion, an independent problem that burdens the Board’s reasoning. The Board
    should address this point on remand as well.
    Finally, the Board’s statement of reasons or bases is also deficient because the Board failed
    to consider certain potentially material favorable evidence. To start, the Board made only a passing
    reference to appellant’s use of a cane.23 Moreover, the Board did not discuss evidence in the record
    that appellant also used a scooter,24 walker,25 and rollator (apparently a specialized type of
    walker).26 This omission could be important because we have held that DC 8520 contemplates the
    use of assistive devices as part of its severity disability rating formula.27
    So, this evidence could
    prove probative in assigning a disability rating under DC 8520.
    In addition, the Board did not discuss a host of potentially favorable evidence in the record
    concerning sensory and motor function issues associated with appellant’s LLE radiculopathy. This
    evidence includes (but is by no means limited to) the following: (1) An October 2007 VA
    Compensation and Pension (C&P) examination documenting give-way weakness in appellant’s
    lower extremities and hypesthesia;28 (2) a September 2010 VA primary care note finding absent
    patellar reflexes and weakness of dorsiflexion of the left foot; 29 (3) a February 2011 C&P
    examination noting evidence of reduced strength and decreased pinprick and light touch sensation
    20 R. at 12, 14-15; see 1824-29 (Aug. 2013 VA medical opinion).
    21 R. at 1830.
    22 38 C.F.R. § 4.124a, DC 8520.
    23 R. at 13.
    24 R. at 1516.
    25 R. at 2308, 2589-90.
    26 R. at 1774-75.
    27 See Spellers v. Wilkie, 30 Vet.App. 211, 218 (2018).
    28 R. at 3519-20.
    29 R. at 2260.
    6
    in the LLE;30 (4) a July 2011 VA medical record showing some weakness and reduced strength of
    the LLE;31 and (5) an August 2013 VA C&P examination finding reduced left toe extension
    strength and decreased light touch sensation in the LLE.32
    We appreciate that the Board does not need to discuss every piece of evidence.33 But it is
    equally clear that “the Board is required to specifically address material record evidence that is
    potentially favorable to the claimant.”34 Given the importance of sensory disturbances and motor
    function to rating a neuralgic condition,35 the Board needed to consider the evidence we have
    selectively highlighted and that appellant discusses at length in his brief.36 The need for such
    discussion is underscored by the importance the Board placed on “objective testing.”37 Without
    the Board providing such discussion, the Court is not in a position to meaningfully review the
    Board’s conclusions. The Board must address this issue on remand.
    B. Entitlement to TDIU
    The Secretary agrees with appellant that the Board’s statement of reasons or bases for
    denying appellant entitlement to TDIU is deficient and that remand is required.38 The Court
    concurs.
    There is extensive medical evidence in the record suggesting that medications appellant
    was prescribed to treat his service-connected disabilities may have caused occupational
    impairment.39 And appellant stated that medications he takes for his service-connected back
    30 R. at 2309.
    31 R. at 1098.
    32 R. at 1828-29.
    33 See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007).
    34 Todd v. McDonald, 27 Vet.App. 79, 86 (2014).
    35 38 C.F.R. § 4.120.
    36 See Appellant’s Brief (Br.) at 13-17. As we note below, the Court will order that the briefing in this appeal be made
    a part of appellant’s claims file on remand.
    37 R. at 14.
    38 See Secretary’s Br. at 9-11.
    39 See, e.g., R. at 2013, 2305, 3519, 2652; see also Secretary’s Br. at 9-10 (discussing the record evidence concerning
    appellant’s medications).
    7
    disability affect his ability to work.40 The Board did not adequately discuss this evidence. It must
    do so on remand.41
    C. Appellant’s Rights on Remand
    Because the Court is remanding this matter to the Board for readjudication, the Court need
    not address any remaining arguments now, and appellant can present them to the Board.42 On
    remand, appellant may submit additional evidence and argument and has 90 days to do so from
    the date of VA’s postremand notice.43 The Board must consider any such additional evidence or
    argument submitted.44 The Board must also proceed expeditiously.45 In addition, the Court found
    the parties’ comprehensive briefs in this matter to be quite useful. To assist the Board, we will
    order that they be associated with appellant’s claims file on remand.
    II. CONCLUSION
    After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
    ASIDE the July 11, 2019, Board decision, as amended on April 20, 2020, and REMANDS this
    matter for further proceedings consistent with this decision. On remand, the briefs in this appeal
    shall be associated with appellant’s claims file.
    DATED: November 24, 2020
    Copies to:
    Glenn R. Bergmann, Esq.
    VA General Counsel (027)
    40 R. at 186.
    41 See Todd, 27 Vet.App. at 86.
    42 Best v. Principi, 15 Vet.App. 18, 20 (2001).
    43 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
    92 (2018).
    44 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
    45 38 U.S.C. §§ 5109B, 7112.

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