Veteranclaims’s Blog

August 29, 2021

Single Judge Application; ‘general lenity rule’ in determining the scope of the claim; Sellers v. Wilkie, 965 F.3d; Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020); see Chavis, 2021 WL 1432578, at *12 (“Although clarity may not have been obtained until VA confirmed the source of the neurologic manifestations, such hindsight does not change VA’s duties to consider the ‘general lenity rule’ in determining the scope of the claim based on the claimant’s filings and evidence of record.” (citing Murphy, 983 F.3d at 1319)); see also Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020) (noting “‘VA’s general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before . . . VA.'” (quoting Veterans Just. Grp., LLC v. Sec’y of Veterans Affs., 818 F.3d 1336, 1356 (Fed. Cir. 2016)));

Filed under: Uncategorized — Tags: — veteranclaims @ 8:00 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4331
LAWRENCE T. VASS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.
1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Senior Judge: Veteran Lawrence T. Vass appeals through counsel the Board’s
April 5, 2019, decision denying a disability rating greater than 40% for lumbosacral strain and
service connection for osteoarthritis of the bilateral knees, including as secondary to serviceconnected lumbosacral strain. 2 The Court stayed proceedings in this matter in August 2020,
pending the Court’s resolution of Chavis v. McDonough.
3 Upon motion from Mr. Vass, the Court
lifted the stay in this matter after the resolution of Chavis. Because the parties agree that VA failed
to obtain all identified and relevant VA records pertaining to Mr. Vass’s knee claims and failed to
ensure the right to initial review of a December 2018 VA knee examination, the Court will set
aside the Board’s denial of these claims and remand the matters for further development. Because
the Board also erred in failing to ensure the right to initial review of a December 2018 VA back
examination and because VA failed to obtain all VA and Social Security Administration (SSA)

1
Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC.
ORDER 03-21 (Jan. 4, 2021).
2 The Board also remanded the matter of entitlement to a total disability rating based upon individual
unemployability (TDIU). This matter is therefore not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478
(2004) (per curiam order) (stating that a Board remand is not a final decision over which this Court has jurisdiction).
3 Chavis v. McDonough, _ Vet.App. _, No. 18-2928, 2021 WL 1432578 (Apr. 16, 2021).
2
records concerning Mr. Vass’s back disability, and based on the Court’s recent holding in Chavis,
the Court will set aside the Board’s denial of an increased rating for Mr. Vass’s back disability and
remand the matter for further development and application of Chavis. Finally, because the Board
had jurisdiction over the issue of entitlement to increased ratings for service-connected bilateral
lower extremity (BLE) radiculopathy, the Court will remand that matter for the Board to address
it in the first instance.
I. ANALYSIS
In a July 1981 decision, the VA regional office (RO) granted Mr. Vass entitlement to
service connection for back strain incurred as a result of an in-service lifting injury.4
In April 2010,
Mr. Vass filed a claim for increase for his service-connected “lower back condition” and reported
that his pain is now constant and that he had radiculopathy in both of his legs as a result.5
In
December 2010, the RO increased his rating for lumbosacral strain to 20% and granted service
connection for BLE radiculopathy “associated with lumbosacral strain” and assigned 10% ratings,
effective on April 19, 2010.6
In September 2012, Mr. Vass filed a claim—from which the current claim stream stems—
for increase for his “low back condition” and a claim for service connection for a bilateral knee
condition.7
In a January 2013 VA back examination, the examiner noted that Mr. Vass reported
no symptoms of lumbar radiculopathy “here today,” and found that the veteran had no radicular
pain or any other symptoms due to radiculopathy.8 Based on that examination, the RO granted an
increased rating of 40% for the lumbosacral strain disability and denied service connection for the
bilateral knees. Mr. Vass disagreed with the RO decision in October 2013, asserting that his knee
disabilities are secondary to his back disability and requesting a higher rating for his back.9

4 Record (R.) at 691, 682-87.
5 R. at 562.
6 R. at 482.
7 R. at 436.
8 R. at 419, 423.
9 R. at 388-90.
3
In an August 2016 back examination, the examiner diagnosed degenerative joint disease
and degenerative disc disease with radiculopathy.10 The examiner noted radicular pain symptoms
due to radiculopathy, including mild numbness in both lower extremities.11 In a September 2016
Statement of the Case (SOC), the RO continued the 40% rating for the back disability but did not
address the issue of entitlement to increased ratings for radiculopathy.12
Acting without representation, Mr. Vass perfected his appeal to the Board in October 2016
and requested an increased rating for his back disability, but he did not explicitly request increased
ratings for BLE radiculopathy.
13 Testifying before the Board in October 2018, Mr. Vass confirmed
that he has additional pain going down his legs, and bowel or bladder incontinence related to his
back disability, for which VA had given him medication.14
In a December 2018 VA examination, Mr. Vass complained that he still had episodes of
pain shooting down both legs, and the examiner noted that the veteran is service connected for
bilateral radiculopathy.15 The examiner noted limitation of motion due to pain on active use and
declined to perform passive testing to prevent injury.16 The examiner diagnosed lumbosacral strain
and reported that Mr. Vass had mild radiculopathy with symptoms of severe intermittent pain and
mild numbness in both legs.17 The examiner noted neither ankylosis nor bladder or bowel problems
associated with the back disability but noted that the veteran uses a brace and cane constantly due
to back pain.18 The Board issued the decision on appeal in April 2019.
A. The Board failed to ensure that VA satisfied its duty to assist the veteran in
developing his back and knee claims, and the Board failed to ensure the right to one review
by the agency of original jurisdiction (AOJ) of the December 2018 VA examinations.
The Secretary is required to make reasonable efforts to assist a claimant in obtaining the
evidence and information necessary to substantiate the claim unless no reasonable possibility

10 R. at 198.
11 R. at 202-03.
12 R. at 166-68.
13 R. at 137.
14 R. at 76-77.
15 R. at 53.
16 R. at 51-53.
17 R. at 55-56.
18 R. at 57.
4
exists that such assistance would aid in substantiating the claim.19 As part of this duty to assist,
“the Secretary shall make reasonable efforts to obtain all of the relevant records . . . that the
claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.” 20 Due
process requires the Secretary to notify the claimant before VA adjudicates the claim if the
Secretary cannot obtain the identified evidence so that the claimant has a fair and reasonable
opportunity to try and secure it or procure alternative evidence at a time when such information
will be most useful to the adjudicator.21
The Court applies the “clearly erroneous” standard to review the Board’s determination that
the Secretary fulfilled his duty-to-assist obligations. 22 A finding is clearly erroneous when,
although there may be evidence to support it, the Court is convinced that the Board made a
mistake.23 In addition, the Board is required to provide a written statement of the reasons or bases
for its conclusions regarding VA’s duty-to-assist requirements, which must analyze the credibility
and probative value of the evidence, account for the evidence that it finds persuasive or
unpersuasive, and provide the reasons for rejecting any material evidence favorable to the
claimant.24
The Board’s jurisdictional statute provides that “[a]ll questions . . . subject to decision by
the Secretary shall be subject to one review on appeal to the Secretary.”
25 The Board denies a
claimant his or her right to “one review on appeal” when it “considers additional evidence without

19 See 38 U.S.C. § 5103A(a)(1)-(2).
20 38 U.S.C. § 5103A(b)(1); see 38 C.F.R. § 3.159(c)(3) (2021) (requiring VA to obtain a claimant’s VA
medical records, regardless of relevance, if the claimant provides “enough information to identify and locate the
existing records including the custodian or agency holding the records; the approximate time frame covered by the
records; and, in the case of medical treatment records, the condition for which treatment was provided”); see also
Jones v. Wilkie, 918 F.3d 922, 927 (2019) (“VA may not consider relevance when determining whether to assist in
obtaining VA medical records.”).
21 See Prickett v. Nicholson, 20 Vet.App. 370, 381 (2006) (“[W]here an applicable statute or regulation is
silent as to whether a particular procedural process is required, such process may be implicitly required when ‘viewed
against [the] underlying concepts of procedural regularity and basic fair play’ of the VA benefits adjudicatory system.”
(quoting Thurber v. Brown, 5 Vet.App. 119, 123 (1993))).
22 Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (per curiam).
23 Webb v. Wilkie, 32 Vet.App. 309, 314 (2020).
24 See 38 U.S.C. § 7104(d)(1); Duenas v. Principi, 18 Vet.App. 512, 517 (2004).
25 38 U.S.C. § 7104(a).
5
having to remand the case to the AOJ for initial consideration and without having to obtain the
appellant’s waiver.”
26
The parties agree that the Board erred in finding that VA had fulfilled its duty to assist
because VA failed to obtain all identified VA medical records concerning the appellant’s knee
claims and that the Board failed to ensure that the appellant was afforded his right to one review
by the AOJ of the December 2018 VA knee examination. Accordingly, the Court will set aside the
Board’s denial of the bilateral knee claims and remand them for further development.
27
The Secretary also concedes error in the Board’s failure to ensure Mr. Vass’s right to have
the AOJ review the December 2018 VA back examination and in the Board’s failure to obtain VA
and SSA records related to Mr. Vass’s increased rating claim for his back disability.
28 He argues,
however, that these errors are harmless because the only way for Mr. Vass to receive a higher
rating under the applicable diagnostic code (DC) is to show the presence of ankylosis, and there is
no evidence of that condition in the record. 29 The Court finds this argument unpersuasive. The
failure to obtain VA records, regardless of their relevance to Mr. Vass’s claims, is prejudicial
because one may not “assume what the contents of the remaining records would show.”
30 Beyond
this, the Secretary’s arguments against prejudice fail because, as explained below, the Court will
remand the back claim for the Board’s consideration in the first instance, in light of the Court’s
holding in Chavis. The Court will thus set aside the Board’s denial of Mr. Vass’s back disability
claim and remand it for further development.
To the extent that the Board found that VA satisfied its duty to assist when it noted that
“[n]either the Veteran nor his representative have raised any issues with the . . . duty to assist,”

26 Disabled Am. Veterans v. Sec’y of Veterans Affs., 327 F.3d 1339, 1347 (Fed. Cir. 2003).
27 See Appellant’s Brief (Br.) at 11-13(describing VA treatment records regarding knee claims that are
missing from the record); Secretary’s Br. at 7-9 (same), Appellant’s Br. at 29-30 (noting that the waiver Mr. Vass
submitted to the Board did not include waiver of his right to one review of the December 2018 VA examinations);
Secretary’s Br. at 13-14 (same).
28 See Appellant’s Br. at 13 (noting that Mr. Vass testified at an October 2018 Board hearing that he receives
Social Security Disability due to his back disability, but that VA made no attempt to request records from the SSA);
Secretary’s Br. at 9-10 (same).
29 Secretary’s Br. at 10-14; see 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule
of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that the harmless-error analysis applies
to the Court’s review of Board decisions).
30 Jones, 918 F.3d at 927.
6
the Court reverses the Board’s finding.31 On remand, the Board must ensure the right to one review
of the December 2018 VA examinations and obtain the identified but missing SSA and VA
medical records or provide adequate reasons or bases for why they are not obtainable, and then
readjudicate Mr. Vass’s claims.
B. The Board gave inadequate reasons for denying a disability rating higher than
40% for lumbosacral strain.
Mr. Vass argues that the Board failed to consider favorable evidence that he experiences
the equivalent of ankylosis32 of the spine, which warrants a rating in excess of 40% under DC 5237
for lumbosacral strain.
33 The Secretary asks the Court to reject this argument because the Board
relied on the unambiguous criteria of § 4.71a and correctly found that Mr. Vass did not meet his
burden to show that his lumbosacral strain manifested as ankylosis.34
Here, the Court’s recent holding in Chavis v. McDonough is dispositive. In Chavis, the
Court held that a claimant may obtain “an evaluation based on ankylosis if [that] claimant’s
functional loss is consistent with that contemplated by ankylosis—in other words, if it is the
functional equivalent of ankylosis.”
35 Thus, if the record contains favorable evidence of symptoms
equivalent to ankylosis, the Board is required to consider that evidence when adjudicating the
degree of spine disability. In this case, Mr. Vass reported to the December 2018 VA examiner that
“he was unable to lay flat supine on the exam table . . . [and] that he sleeps at night supine on the
back with his legs elevated.”36 During range of motion testing, Mr. Vass exhibited pain on active
forward flexion and active extension.37 The examiner did not perform passive spinal manipulation
testing “to prevent possible injury to the veteran.”
38 Further, the Board, discussing the examination,
found that “[t]here was pain with weight bearing”, “pain . . . that causes functional loss” and “flare-

31 R. at 7.
32 “Ankylosis” a medical term meaning “[i]mmobility and consolidation of a joint due to disease, injury, or
surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 94 (33d ed. 2019); see STEADMAN’S MEDICAL
DICTIONARY at 95 (28th ed. 2006) (“Stiffening or fixation of a joint as the result of a disease process, with fibrous or
bony union across the joint.”).
33 See Appellant’s Br. at 26-28; 38 C.F.R. § 4.71a, DC 5237 (2021).
34 Secretary’s Br. at 22; see R. at 6, 13, 14 (citing August 2016, December 2018 VA examination reports).
35 Chavis, 2021 WL 1432578, at *8.
36 R. at 58.
37 R. at 51-52.
38 R. at 51-53.
7
ups that limited range of motion” but “no ankylosis.”
39 The Court will remand this matter for the
Board to consider this Court’s holding in Chavis and to determine, in the first instance, whether
the evidence is sufficient to demonstrate the functional equivalent of ankylosis.
40 The Board must
consider on remand whether the evidence of record warrants a disability rating in excess of 40%
or whether further development is necessary to determine entitlement to an increased rating.
41
C. The Board had jurisdiction over the matters of increased disability ratingsfor BLE
radiculopathies because the issues were reasonably raised by the record.
Mr. Vass argues that the Board erred as a matter of law when it implicitly determined that
the matters of increased ratings for BLE radiculopathies were not on appeal.42 He asserts that his
September 2012 increased rating claim for his “low back condition,” from which the current claim
stream stems, “broadly encompassed all conditions associated with his low back,” including his
service-connected radiculopathies.
43 He notes that the RO first granted service connection for BLE
radiculopathy “associated with lumbosacral strain” in January 2011 and assigned separate 10%
ratings for each lower extremity, effective from April 2010. 44 He contends that his BLE
radiculopathy was thus part of his original back disability under the principle of secondary service
connection that “[w]hen service connection is thus established for a secondary condition, the
secondary condition shall be considered a part of the original condition.”45 Therefore, his argument
goes, a sympathetic reading of his September 2012 claim from the point of view of a reasonable
lay claimant shows that it necessarily encompassed the issue of increased ratings for his BLE
radiculopathy.
46 He further asserts that his failure to expressly identify the radiculopathy issue in
his Notice of Disagreement (NOD) is not fatal because, in the September 2016 SOC issued in
response to the NOD, the AOJ noted evidence of BLE radiculopathy and referenced 38 C.F.R.

39 R. at 14.
40 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 [or] failed to provide an adequate statement of reasons or bases for its
determinations”).
41 See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);
see also R. at 14 (Board noting deficiencies in the December 2018 examination, including that the “examiner could
not provide an opinion regarding functional impairment during a flare-up or with repetitive use over time”).
42 Appellant’s Br. at 21; see R. at 11-15.
43 Appellant’s Br. at 22; see R. at 436.
44 Appellant’s Br. at 22.
45 38 C.F.R. § 3.310(a); see Appellant’s Br. at 22.
46 Appellant’s Br. at 22-23.
8
§ 4.71a, General Rating Formula for Diseases and Injuries of the Spine, note 1, which directs VA
to evaluate any associated objective neurological abnormalities under an appropriate diagnostic
code.
47 Further, he asserts, after he perfected his appeal, he testified at an October 2019 Board
hearing that he has additional pain going down his legs, and bowel and bladder incontinence for
which he takes medication.
48
The Secretary counters that the Board, and thus this Court, has no jurisdiction over a claim
for increased ratings for BLE radiculopathy.49 He contends that because the December 2010
decision awarding separate service connection for lumbosacral strain and for BLE radiculopathy
became final, they are “jurisdictionally separate claims.”50 He further notes that Mr. Vass did not
expressly identify the issue of increased ratings for radiculopathy in either his September 2012
claim statement or his October 2013 NOD, and that nothing in the SOC or the Board hearing could
be reasonably interpreted as conveying to Mr. Vass that the RO or Board had jurisdiction over
such claims.
51
The Court exercises de novo review over Board determinations that are critical to its
jurisdiction.52 In Chavis, the Court concluded that “[g]iven that there was evidence of neurologic
manifestations contemporaneous with Mr. Chavis’s pleadings and that those pleadings were
broadly worded, . . . , a sympathetic reading . . . compels a conclusion that they encompassed the
appropriate evaluations for the neurologic component of Mr. Chavis’s lumbar spine disability.”
53
The Court based its determination on “lay and medical evidence throughout the appeal period of
the lumbar spine claim,” which it found “reflect[ed] neurologic signs and symptoms that have now
been attributed to the bilateral lower extremity radiculopathy,”54 as well as the fact that “VA ha[d]
considered [appellant’s] reports of neurologic sequelae as part of his claim seeking increased
compensation for his back disability” when it ordered a VA examination “to identify all neurologic

47 Id. at 23; see R. at 166, 167-68.
48 Appellant’s Br. at 23; see R. at 76.
49 Secretary’s Br. at 26-30.
50 Id. at 27-28.
51 Id. at 28-30.
52 See Evans v. Shinseki, 25 Vet.App. 7, 10 (2011).
53 Chavis, 2021 WL 1432578, at *12.
54 Id. at *11.
9
manifestations of the service-connected back condition and to render an opinion regarding the
severity of any identified manifestation.”55
Here, Mr. Vass’s pleadings were broadly worded.
56 He cites medical records showing
neurological complications throughout the appeal period, including the August 2016 VA
examination report that diagnosed degenerative joint disease and degenerative disc disease with
radiculopathy and noted radicular pain symptoms and mild numbness in the bilateral lower
extremities.57 Further, after Mr. Vass perfected his appeal, he testified at an October 2019 Board
hearing that he has additional pain going down his legs, and bowel and bladder incontinence for
which he takes medication.58

Further, the Secretary’s argument that the issues of radiculopathy and lumbar strain are
“jurisdictionally separate claims” is contradicted by the Court’s holding in Chavis. Although VA
awarded Mr. Vass separate ratings for radiculopathy as part of the prior, final back claim and not,
as in Chavis, during the course of the increased rating claim that was on appeal, this fact does not
render the holding of Chavis inapplicable. Indeed, the record shows that in the December 2010
decision, when VA granted Mr. Vass separate ratings for bilateral lower extremity radiculopathy,
it found that the radiculopathy was “associated with lumbosacral strain.”59 Thus, it was reasonable
for Mr. Vass to consider the matter of increased ratings for radiculopathy to be within the scope
of his claim for increase for his back disability.60
Accordingly, this case is squarely controlled by the Court’s holding in Chavis, and the
Court holds that the Board had jurisdiction over the issues of increased ratings for radiculopathy.
The Court will thus remand the matters for the Board to adjudicate these issues in the first instance.

55 Id. at *12.
56 R. at 388-90 (requesting a higher percentage rating for his lumbar back disability); R. at 436 (seeking an
increased rating for his “low back condition”).
57 R. at 198, 202-03.
58 R. at 76.
59 R. at 482.
60 Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020); see Chavis, 2021 WL 1432578, at *12 (“Although clarity may not have been obtained until VA confirmed the source of the neurologic manifestations, such hindsight
does not change VA’s duties to consider the ‘general lenity rule’ in determining the scope of the claim based on the claimant’s filings and evidence of record.” (citing Murphy, 983 F.3d at 1319)); see also Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020) (noting “‘VA’s general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before . . . VA.'” (quoting Veterans Just. Grp., LLC v. Sec’y of Veterans Affs., 818 F.3d 1336, 1356 (Fed. Cir. 2016))).
10
D. Remand
The Court need not, at this time, address the other arguments and issues raised by Mr. Vass
regarding his claims.61 On remand, Mr. Vass is free to submit additional evidence and argument
to the Board.
62 The Court reminds the Board that “[a] remand is meant to entail a critical
examination of the justification for the decision” and must be performed in an expeditious manner
in accordance with 38 U.S.C. § 7112.63
II. CONCLUSION
After fully considering the veteran’s arguments, the Court SETS ASIDE the April 5,
2019, Board decision and REMANDS the matters for further proceedings.
DATED: August 4, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

61 Mr. Vass also argues that the Board clearly erred when it relied on an inadequate August 2016 VA opinion
to deny service connection for his bilateral knee disabilities as secondary to his back disability.
62 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see Kay v. Principi,
16 Vet.App. 529, 534 (2002).
63 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).

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