Veteranclaims’s Blog

November 6, 2021

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.'” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6181
CHARLESEY L. BOND, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Veteran Johnny L. Bond, Jr., served in the Army for almost 15 years,
including a deployment to Saudi Arabia and Kuwait during the Gulf War. His surviving spouse,
Charlesey L. Bond, appeals a 2019 Board decision that decided 28 matters but raises arguments as
to just 12 of them.* The Secretary concedes that the Board made errors in deciding 11 of those
matters involving service-connection and increased-rating claims, so the Court remands them. As
for the last matter—the Board’s denial of entitlement to special monthly compensation (SMC)
based on the veteran’s need for regular aid and attendance, the Secretary urges the Court to affirm.
But because the Board did not address whether the veteran’s service-connected conditions,

  • The 16 remaining matters include the Board’s dismissal of a claim for service connection for bilateral hand
    swelling and request for a rating greater than 20% for bilateral hearing loss; denials of service connection for an
    inguinal hernia, dental abscesses, fibromyalgia, prostate cancer, and refractive error; denials of earlier effective dates
    for the grants of service connection for post-traumatic headaches (earlier than January 5, 2010), post-traumatic brain
    injury (earlier than October 25, 2013), left-ankle tendinopathy (earlier than October 25, 2013), and right-ankle
    tendinopathy (earlier than October 25, 2013); ratings in excess of 10% for post-traumatic brain injury and chronic
    conjunctivitis, in excess of 0% for left-foot hallux valgus, and in excess of 0% for loss of taste; and denials of
    entitlement to automobile or other conveyance and adaptive equipment. Since the appellant raised no other arguments
    as to these remaining matters, the Court deems them abandoned. See Martinez v. Wilkie, 31 Vet.App. 170, 173 n.2
    (2019).
    2
    standing alone, required the need for regular aid and attendance, remand of that claim is also
    warranted.
    I. CONCESSIONS
    A. Service-Connection Claims
    A veteran of the Gulf War can establish entitlement to service connection on a presumptive
    basis if he or she “exhibits objective indications of a qualifying chronic disability” during active
    duty or to a compensable degree before December 31, 2021. See generally 38 U.S.C. § 1117; 38
    C.F.R. 3.317(a)(1)(i) (2021). A “qualifying chronic disability” is one that results from either an
    “undiagnosed illness” or a “medically unexplained chronic multisymptom illness [(MUCMI)] that
    is defined by a cluster of signs or symptoms.” 38 C.F.R. § 3.317(a)(2)(i)(A)-(B). A MUCMI, in
    turn, is defined as “a diagnosed illness without conclusive pathophysiology or etiology, that is
    characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability
    out of proportion to physical findings, and inconsistent demonstration of laboratory
    abnormalities.” Id. § 3.317(a)(2)(ii).
    Mr. Bond filed a claim for service connection for five conditions as related to his service
    in the Gulf War—for a skin rash, asthma, fatigue, respiratory chest infections with shortness of
    breath, and sleep apnea. The Board did not address entitlement to service connection under the
    Gulf War presumptions. The Secretary concedes that, even though the theory was “explicitly
    [raised] by the Veteran and reasonably raised by the record,” the Board failed to address it.
    Secretary’s Br. at 13. The Court accepts the Secretary’s concession and remands so the Board can
    consider entitlement to service connection for a skin rash, asthma, fatigue, respiratory chest
    infections with shortness of breath, and sleep apnea under the Gulf War presumptions.
    B. Post-traumatic Headaches Rating
    Mr. Bond received service-connected compensation for post-traumatic headaches at a rate
    of 30% under Diagnostic Code (DC) 8100. Under that DC, a 30% rating is warranted when the
    evidence shows that the veteran has “characteristic prostrating attacks on average of once a month
    over the last several months,” and a 50% rating is warranted when the veteran’s headaches are
    “frequent completely prostrating and prolonged attacked productive of severe economic
    inadaptability.” 38 C.F.R. § 4.124a (2021). When assessing the economic impairment element of
    the 50% rating, the Board should evaluate whether the attacks are capable of producing severe
    3
    economic inadaptability and not whether they actually produce such inadaptability. Pierce v.
    Principi, 18 Vet.App. 440, 445-46 (2004).
    Here, the Board found that the veteran was not entitled to the 50% rating because Mr. Bond
    never “described very frequent headaches that are productive of severe economic inadaptability,
    nor is his medical history consistent with very prostrating and prolonged headaches productive of
    severe economic inadaptability.” R. at 27. The parties agree that the Board’s discussion of
    economic impairment was inadequate. Specifically, the Board addressed whether the veteran’s
    headaches resulted in actual economic inadaptability. But the parties agree that it should have
    addressed whether his headaches were capable of producing severe economic inadaptability. See
    Pierce, 18 Vet.App. at 445-46. The Court accepts the Secretary’s concession regarding this claim
    too, and remands for readjudication consistent with the preceding discussion.
    C. Remaining Increased Rating Matters
    The appellant also appeals the Board’s denial of five increased rating claims—for the
    veteran’s left ankle, right ankle, left knee, right knee, and lumbar spine disabilities.
    Generally, in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32
    (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.'” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32
    .
    There is no dispute between the parties that the Board failed to discuss the factors in §§
    4.40 or 4.45 in evaluating the veteran’s five musculoskeletal disabilities. Thus, the Court remands
    so the Board can consider the veteran’s additional functional impairments due to any Deluca
    factors that he exhibited. Because these rating issues are being remanded, the Court declines to
    address the appellant’s arguments that the July 2013, August 2014, and May 2016 VA exams are
    inadequate to rate the veteran’s joint disabilities as they do not comply with this Court’s decision
    4
    in Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016). But since the briefs will be included in
    the record, the Board should review them and address the adequacy of the medical evidence and
    whether it needs a retrospective medical opinion to cure an alleged error.
    Although the parties agree to remand, they disagree as to how the Board should use the
    Deluca factors in rating the condition. The Secretary essentially argues that the Deluca factors
    guide the Board to a rating under the appropriate DC in § 4.71a, but they do not permit VA to craft
    a higher rating if the veteran’s functional impairments are not at least functionally equivalent to
    the limitation of motion standards in the appropriate DC. Secretary’s Br. at 20. On the other hand,
    the appellant argues that “the Board should not limit its assessment of orthopedic ratings to a
    mechanical application of the [DC]’s range of motion measurements.” Reply Br. at 3. The Court
    agrees with the appellant. While musculoskeletal rating evaluations must be based on the criteria
    set forth under the applicable DC in § 4.71a, a veteran may be entitled to “‘a higher musculoskeletal
    evaluation than would otherwise be supported by mechanical application of a given DC’ when his
    or her disability is properly viewed through the lens of those leading regulations.” Chavis v.
    McDonough, 34 Vet.App. 1, 10 (2021) (quoting Lyles v. Shulkin, 29 Vet.App. 107, 117 (2017)).
    For example, a veteran may be entitled to a higher evaluation if the Deluca factors cause
    “functional loss equivalent to that contemplated by the higher evaluation.” Id. at 18.
    There is one final matter in this section—separate ratings for the veteran’s left and right
    knee degenerative joint disease (DJD). The appellant argues, and the Secretary concedes, that the
    Board did not properly assess whether the veteran was entitled to separate ratings for each knee
    under DC 5257, which provides for a 30% rating for the knee when the veteran has “recurrent
    subluxation or instability.” 38 C.F.R. § 4.71a. A 2016 examiner found that the veteran did not have
    instability in his knees, but Mr. Bond reported that he had instability in his knees. Compare R. at
    36-38 (2016 exam) with R. at 5597 (2015 lay report of knee “[i]nstability”), 782-84 (2019 hearing
    transcript, “unstable” knees), 1301 (2018 treatment record, “knees were giving out”). The parties
    agree that the Board did not explain why it relied on the 2016 medical evidence of no bilateral
    knee instability over the veteran’s various lay reports of bilateral knee instability. On remand, the
    Board should reassess its reliance on the 2016 opinion to deny separate knee ratings under DC
  1. See English v. Wilkie, 30 Vet.App. 347, 352 (2018) (“nothing in DC 5257 provides that
    objective medical evidence is required or is to be favored over lay evidence.”).
    5
    II. SMC
    A veteran who requires “regular aid and attendance” “as the result of [a] service-connected
    disability” is entitled to SMC. 38 U.S.C. § 1114(l); Howell v. Nicholson, 19 Vet.App. 535, 538
    (2006). The Board must consider several criteria when evaluating the need for aid and attendance
    including, among several other factors, whether the claimant can “dress or undress himself
    (herself),” “keep himself (herself) ordinarily clean and presentable,” “feed himself (herself),” or
    “attend to the wants of nature.” 38 C.F.R. § 3.352(a); see Prejean v. West, 13 Vet.App. 444, 447
    (2000) (only one factor in § 3.352(a) must be present to award SMC based on the need for aid and
    attendance). Moreover, the evidence need only “establish that the veteran is so helpless as to need
    regular aid and attendance, not that there be a constant need.” 38 C.F.R. § 3.352(a).
    Whether a veteran is entitled to SMC is a factual determination that this Court reviews for
    clear error, meaning that the Court may not disturb the Board’s factual findings unless there’s no
    plausible basis in the record for them. Prejean, 13 Vet.App. at 447. However, the Court cannot
    affirm if the Board did not provide a statement of reasons or bases addressing all material issues
    of fact and law or its reasons for rejecting material evidence that is favorable to the veteran. Id.
    Here, the Board found that “the evidence is against a finding that [Mr. Bond’s] serviceconnected
    disabilities alone result in his needing the regular aid and attendance of another person.”
    R. at 47. In reaching its decision, the Board relied on medical reports from July 2014 and October
  2. The 2014 medical report supported the Board’s finding that Mr. Bond was unable to prepare
    meals due to his service-connected PTSD, TBI, and left arm disabilities; unable to bathe without
    help due to his service-connected ankle, back, hips, knees, and left foot disabilities; and needed
    help managing his medications. R. at 46. And the October 2018 medical report supported the
    Board’s finding that Mr. Bond was unable to prepare his meals, though he was able to feed himself;
    could not bathe without assistance; and required medication management. The Board concluded
    that Mr. Bond’s service-connected disabilities impaired his mobility and, at least in part, his ability
    to bathe and prepare meals. However, it did not find that he required assistance of another person
    based “solely” on his service-connected disabilities but found that his inabilities to bathe and
    prepare meals were also partly based on his non-service-connected disabilities.
    Ms. Bond argues on appeal that the Board failed to separate the effects of Mr. Bond’s
    service-connected and non-service-connected disabilities to determine whether his serviceconnected
    disabilities alone warranted regular aid and attendance. The Court agrees.
    6
    This case presents a similar factual scenario to Howell v. Nicholson, 19 Vet.App. 535
    (2006). In that case, the Board denied SMC based on the need for regular aid because two
    physicians had opined that Mr. Howell required aid and attendance based on a combination of his
    service-connected and non-service-connected disabilities. The Court found that the Board erred in
    evaluating the need for aid and attendance based on a combination of and without separating the
    effects of the veteran’s service-connected and non-service-connected disabilities. Suffering from
    both service-connected and non-service-connected disabilities, the Court explained, “does not
    mean that [a veteran] would not have required support sufficient to warrant aid and attendance . .
    . based on his service-connected disabilities alone.” Id. at 540. The proper approach is to assess
    whether the veteran’s service-connected disabilities alone require the need for regular aid and
    attendance. The Court further held that, when separating out the effects, VA should apply the
    benefit-of-the-doubt doctrine if the symptoms of the non-service-connected disabilities are
    inseparable from the service-connected disability. Id. (citing Mittleider v. West, 11 Vet.App. 181,
    182 (1998)).
    The Board made a similar error here. It found that the veteran needed help with mobility,
    preparing meals, and bathing but concluded that he did not need aid and attendance because “he
    has multiple nonservice-connected disabilities that contribute to his overall problem . . . , to
    specifically include his cancer of the prostate, lung, and brain.” R. at 47. But neither the Board nor
    the record evidence clearly explain which disabilities contributed to which impairments and,
    consequently, whether the service-connected impairments warranted the need for regular aid and
    attendance. For instance, the Board relied on a 2014 and a 2018 medical report. The 2014 report
    noted that the veteran suffered impairments related to service-connected joint disabilities
    (including his knees, ankles, feet, and back) that required him to have assistance with preparing
    meals, bathing, and medication management. That physician only mentioned the veteran’s nonservice-
    connected prostate cancer in noting that it had been recently diagnosed. R. at 488. As for
    the 2018 report, the physician addressed the veteran’s need for regular assistance based on his
    service-connected PTSD and TBI and his non-service-connected lung cancer but did not explain
    for which disabilities the veteran required regular aid.
    Although the record evidence shows that Mr. Bond had non-service-connected disabilities
    that interfered with his activities of daily living, that fact does not foreclose the possibility that his
    service-connected disabilities alone rendered him so helpless as to require the aid and attendance
    7
    of another person. And the Court is unable to discern from the Board’s decision whether, based on
    the veteran’s service-connected conditions standing alone, he required regular aid and attendance.
    Thus, the Court remands for consideration of that question.
    III. CONCLUSION
    In sum, the Court VACATES the Board’s June 20, 2019, denial of service connection for
    a skin rash, asthma, fatigue, respiratory chest infections with shortness of breath, and sleep apnea;
    ratings in excess of 30% for post-traumatic headaches, 20% for lumbar-spine DJD, and 10% for
    left-ankle tendinopathy, right-ankle tendinopathy, left-knee DJD, and right-knee DJD; and
    entitlement to SMC based on the need for regular aid and attendance; REMANDS those 12 matters
    for readjudication consistent with this opinion; and DISMISSES the balance of this appeal.
    DATED: September 14, 2021
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)

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