Veteranclaims’s Blog

October 19, 2021

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added); Chavis changes the landscape; examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4033
SHANE R. KAKAC, APPELLANT,
V.
DENIS MCDONOUGH,
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 Shane R. Kakac served the Nation honorably in the United
States Army from March 1996 to March 1999.1 In this appeal, which is timely and over which the
Court has jurisdiction,2 he contests a February 11, 2020, Board of Veterans’ Appeals decision that
granted an initial disability rating of 30% and denied an effective date earlier than May 17, 2018,
for service-connected cervical strain.3 As we will explain, because the Board’s statement of reasons
or bases is inadequate to enable meaningful judicial review concerning the disability rating issue,
we will set aside that portion of the decision on appeal and remand this matter for further
proceedings. As for the effective-date issue, we will affirm that portion of the February 2020 Board
decision.
I. ANALYSIS
1 Record (R.) at 1739.
2 See 38 U.S.C. §§ 7252, 7266(a).
3 R. at 5-19. The Board remanded claims for bilateral ulnar nerve disabilities, bilateral median nerve disabilities, and
obstructive sleep apnea. The Court lacks jurisdiction over these remanded matters. See Pederson v. McDonald, 27
Vet.App. 276, 281-85 (2015) (en banc).
2
The Board’s decisions concerning the assignment of an appropriate disability rating4 and
an effective date of an award are both factual determinations we review 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 In addition, the
Board must include in its decision a written statement of the reasons or bases for all its findings
and conclusions adequate to enable an appellant to understand the precise basis for the Board’s
decision as well as to facilitate review in this Court.7 To comply with this requirement, the Board
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 its rejection of any material evidence
favorable to the claimant.8 If the Board fails to do so, remand is appropriate.9 Importantly, an
appellant ultimately carries the burden of establishing error in the decision on appeal.10
Appellant challenges the Board’s evaluation of his service-connected cervical strain. He
asserts error in the Board’s decision, arguing that he is entitled to a 40% disability rating for his
cervical strain.11 Specifically, he contends that the Board provided an inadequate statement of
reasons or bases because it relied on an April 2019 VA medical opinion that was itself inadequate
for adjudicative purposes. He also argues that the Board provided an inadequate statement of
reasons or bases in denying an earlier effective date for his cervical strain. Appellant claims that
the effective date should be September 22, 2017, the date on which he filed an intent to file claim.12
The Secretary asserts that the Board did not err in any respect and urges affirmance.
As we will explain, we agree with appellant that the Board’s determination concerning the
severity of his cervical strain lacks an adequate statement of reasons or bases, but for a narrower
reason than what appellant asserts. We will set aside that portion of the Board’s decision and
4 Prokarym v. McDonald, 27 Vet.App. 307, 312 (2015); 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49,
53 (1990).
5 Evans v. West, 12 Vet.App. 396, 401 (1999); 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 See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57; see also Caluza v. Brown, 7 Vet.App. 498, 505-06 (1995),
aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table).
8 See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57.
9 Tucker v. West, 11 Vet.App. 369, 374 (1998).
10 Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per
curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); see also Locklear v. Nicholson, 20 Vet.App. 410, 416-17 (2006).
11 Appellant’s Brief (Br.) at 4-5.
12 Appellant’s Br. at 6-8.
3
remand it for further proceedings. However, we find that the Secretary is correct as to the effective
date and so we will affirm that matter. We will first discuss the issue related to the assignment of
the appropriate disability rating and then turn to the effective date issue.
A. Increased Disability Rating
Appellant’s cervical strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237.
He takes issue with the Board’s denial of a rating greater than 30% for cervical strain. Specifically,
appellant asserts that the April 2019 examiner failed to provide a rationale as to why he found that
appellant did not suffer from ankylosis of his cervical spine, and appellant insists the Board erred
in relying on the April 2019 examination. This is appellant’s only argument concerning the severity
of his disability rating for his cervical strain.
Appellant’s cervical strain disability is rated under Diagnostic Code (DC) 5237. According
to the rating criteria under 38 C.F.R. § 4.71a, to qualify for a 20% rating for cervical strain, the
veteran must have a “forward flexion of the cervical spine greater than 15 degrees but not greater
than 30 degrees.” To qualify for a 30% rating, the veteran must have “forward flexion of the
cervical spine” at “15 degrees or less[,] or, favorable ankylosis of the entire cervical spine.”13 A
40% rating for cervical strain requires “unfavorable ankylosis of the entire cervical spine.”14
The Court has recently decided an appeal that is directly relevant to the disability rating
issue presented here. In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. §
4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.”15

Important to this appeal, the Chavis Court explained that ankylosis is an objective finding that
requires consideration of 38 C.F.R. §§ 4.40 and 4.45 for functional loss and a reduction of joint
movement.16 In other words, to fully understand the nature of a joint disability such as cervical
strain, functional loss and joint movement under §§ 4.40 and 4.45, respectively, may constitute as
a functional equivalent of ankylosis. VA must consider those factors and determine whether they
interfere with joint movement.17
13 38 C.F.R. § 4.71a (2020).
14 Id.
15 See Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added). 16 Id., Vet.App. at , 2021 WL 1432578, at *7. 17 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). 4 In his brief, appellant does not raise an argument specifically citing Chavis or about the functional equivalent of ankylosis. Rather, appellant argues that the Board did not provide an adequate statement of reasons or bases by failing to consider the adequacy of the April 2019 medical examination. However, this Court may remand a matter if the Board failed to make factual findings that are critical to its decision.18 Here, the Board cites §§ 4.40 and 4.45,19 but it does not provide a meaningful discussion about the potential functional limitations of appellant’s cervical strain according to Chavis. The Board did consider the April 2019 VA examination of appellant’s cervical strain. Importantly, the Board considered and recounted the April 2019 examiner’s findings that appellant reported daily flare-ups of his cervical spine, experienced a flare during the examination, and had “significantly limited functional ability.”20 But the Board’s discussion concerning ankylosis in connection with appellant’s cervical strain was limited to the April 2019 examiner’s opinion that appellant had no ankylosis of the spine.21 Specifically, the Board concluded that a disability rating greater than 30% was not warranted because “there [was] no clinical evidence of unfavorable ankylosis.” It seems that the Board hung its hat on the April 2019 examiner’s finding that appellant had no ankylosis.22 That assessment might have been appropriate or at least defensible before Chavis, but Chavis changes the landscape. The Board’s reliance on this finding is problematic under Chavis because the April 2019 examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis. Remand is appropriate here for the Board to provide an adequate statement of reasons or bases that addresses the favorable evidence as it relates to Chavis. On remand, the Board must address the evidence and apply Chavis in the first instance. B. Effective Date 18 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.”).
19 See R. at 7-8.
20 See R. at 9-10.
21 R. at 10, 11.
22 See R. at 511.
5
We now turn to the Board’s determination denying an effective date earlier than May 17, 2018. Pointing to 38 C.F.R. § 3.155(b)(2), appellant contends that the effective date should be
September 22, 2017, the date on which he filed an intent to file claim because an October 2017
claim supposedly encompassed a claim for cervical strain.23
Important to this portion of the appeal is understanding some of the procedural history
behind appellant’s cervical strain claim. To start, appellant filed an intent to file a claim on
September 22, 2017.24 In October 2017, he filed a claim for three purported disabilities: carpal
tunnel syndrome, cubital tunnel syndrome, and sleep apnea.25 On May 17, 2018, he filed a claim
for other disabilities, including cervical strain.26
If VA receives a complete claim within 1 year after the claimant files an “intent to file a
claim” in accordance with § 3.155(b), the claim will be considered filed as of the date the intent to
file claim filing.27 “Only one complete claim for a benefit (e.g., compensation, pension) may be
associated with each intent to file a claim for that benefit, though multiple issues may be contained
within a complete claim.”28 If “multiple complete claims for a benefit are filed within 1 year of an
intent to file a claim for that benefit, only the first claim filed will be associated with the intent to
file a claim.”29 In other words, a claim for benefits may include multiple issues, but only the first
complete claim filed within the 1-year period following an intent to file claim can be associated
with the filing date of the intent to file claim. If a complete claim is filed after the first complete
claim, even if within the 1-year filing period of an intent to file claim, the subsequent complete
claim cannot be associated with the Intent to File.
Here, appellant filed his first complete claim in October 2017. The issues within the
October 2017 claim pertained to sleep apnea and bilateral arm and hand disabilities. In a second
complete claim, filed in May 2018, appellant included cervical strain as an issue for the first time.
23 Appellant’s Br. at 6-7. Appellant claims the Board found that his “‘bilateral nerve disabilities in his hands and arms’
were within the scope of [his] cervical spine claim.” Compare Appellant’s Br. at 7, with R. at 7. Appellant is incorrect.
The Board did not make such a determination; instead, the Board explained that appellant’s claim for cervical strain
was separate from his claims for bilateral arm and hand disabilities. See R. at 7.
24 See R. at 1183.
25 See R. at 1182 (Oct. 2017 Supplemental Claim Form, VA Form 21-526b).
26 See R. at 1130-31 (May 2018 Supplemental Claim Form, VA Form 21-526b with an addendum).
27 See 38 C.F.R. § 3.155(b)(1)(i)-(iii), (d)(1).
28 See 38 C.F.R. § 3.155(d)(1)(ii).
29 See 38 C.F.R. § 3.155(d)(1)(ii) (emphasis added).
6
Based on the plain and unambiguous language of the relevant regulations, it is clear that only the
October 2017 claim can be associated with the September 2017 Intent to File. In the decision on
appeal, the Board correctly decided that appellant’s cervical strain claim cannot be associated with
the September 2017 intent to file claim. 30 Furthermore, the Board applied the appropriate
regulatory provisions and explained that the October 2017 claim did not encompass cervical strain;
rather, the October 2017 claim concerned “sleep apnea, bilateral hand disabilities, and bilateral
arm disabilities.”31 We agree with the Board. We are unpersuaded by appellant’s underdeveloped
argument that the October 2017 issues encompassed a cervical strain. Appellant did not point to
anything to support his assertion that bilateral arm or bilateral hand disabilities encompass neck
disabilities. Therefore, we will affirm the Board’s determination that an effective date earlier than
May 17, 2018, for a 30% rating for service-connected cervical strain is not warranted.
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the portion of the Board’s February 11, 2020, decision denying an initial disability rating
greater than 30% for a cervical strain and REMANDS that matter for further adjudication. We
AFFIRM the Board’s decision denying entitlement to an effective date before May 17, 2018, for
service connection for cervical strain.
DATED: June 30, 2021
Copies to:
Stephani Bennett, Esq.
VA General Counsel (027)
30 R. at 13.
31 R. at 12-13.

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