Veteranclaims’s Blog

January 10, 2022

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 140 (2021) (“[W]here 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.”);

Designated for electronic publication only
No. 20-7989
Before FALVEY, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Air Force veteran Richard J. Blanco, through counsel, appeals an August
7, 2020, Board of Veterans’ Appeals decision that denied, for a service-connected compression
fracture of the thoracic spine (spine disability), a disability rating greater than 10% from June 10,
2010, to February 26, 2014, and a rating greater than 40% thereafter. This appeal is timely, the
Court has jurisdiction to review the Board’s decision, and single-judge disposition is appropriate.
See U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board erred in finding that the duty to assist had been
met when it relied on VA medical examinations that did not comply with our decisions in Sharp
v. Shulkin, 29 Vet.App. 26, 34 (2017), and Correia v. McDonald, 28 Vet.App. 158, 168 (2016).
Because the Board did not adequately explain why it found that the duty to assist was met, we will
set aside its decision and remand the matter for further proceedings.
Mr. Blanco argues that the Board inadequately addressed why he was not entitled to a
medical examination that addressed his disability during a flareup. The veteran’s spine disability
is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a
(2021). Of relevance here, a 20% disability 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. A 40% disability rating is warranted when there is “[f]orward flexion of the thoracolumbar
spine 30 degrees or less; OR, favorable ankylosis of the entire thoracolumbar spine.” Id. And a
50% disability rating is appropriate when the evidence shows “[u]nfavorable ankylosis of the entire
thoracolumbar spine.” Id. The ankylosis requirement “can be met with evidence of the functional
equivalent of ankylosis during a flare.” Chavis v. McDonough, 34 Vet.App. 1, 3-4 (2021).
The duty to assist includes the duty to provide an adequate medical examination. A VA
examination is adequate when it describes a disability in enough detail so that the Board’s
“evaluation of the claimed disability will be a fully informed one.” Ardison v. Brown, 6 Vet.App.
405, 407 (1994). As we explained in Correia, the Secretary requires that “certain range of motion
testing be conducted whenever possible in cases of joint disabilities.” 28 Vet.App. at 168. “If for
some reason the examiner is unable to conduct the required testing or concludes that the required
testing is not necessary . . . he or she should clearly explain why that is so.” Id. at 170.
When determining limitation of motion, the Board must consider pain that results in
functional loss and consider the veteran’s condition during flareups. Sharp, 29 Vet.App. at 34;
38 C.F.R. §§ 4.40 (2021) (functional loss due to pain on movement and diminished excursion,
strength, speed, coordination, and endurance) and 4.45 (2021) (abnormal extent of movement,
weakened movement, excess fatigability, and incoordination, as well as pain on movement,
instability of station, disturbance of locomotion, interference with sitting, standing, and weightbearing).
As with all its material determinations of fact and law, the Board’s duty to assist
determinations must be supported with a statement of reasons or bases that is adequate to enable
an appellant to understand the precise basis for its decision, as well as to facilitate review in this
Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). To comply with
this requirement, the Board must analyze the credibility and probative value of the evidence,
account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its
rejection of any 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).
Here, the Board observed that the veteran reported “severe daily flareups” that were
characterized by pain and occurred “several times a week,” Record (R.) at 10, “lasted for minutes
to days,” and were rated a “nine to ten out of ten” on a pain scale. R. at 11. The Board further
acknowledged that “the December 2010, February 2014, and April 2017 VA examination reports
did not estimate the functional loss during flareups.” R. at 14-15. But the Board found no need to
remand for a new examination. R. at 15. Regarding the 2010 examination, the Board said that no
medical opinion about flareups was needed to inform its decision because Mr. Blanco’s flareups
are characterized by pain and the 2010 examiner already recorded painful motion. Id. As for the
2014 and 2017 examinations, the Board found that the failure to provide an opinion during a
flareup was not harmful because “to be awarded a disability rating in excess of 40[%] from
February 27, 2014, the evidence would need to show unfavorable ankylosis,” and neither examiner
diagnosed ankylosis. Id.
The Board’s explanation does not facilitate judicial review. First, as for the 2010
examination, although the examiner noted painful movement, the veteran alleged that the pain was
so great during a flareup that he could not move at all or perform any activities. R. at 865. Yet the
examiner does not offer an opinion based on the veteran’s condition during such a state; the painful
motion that the examiner recorded reflects the veteran’s regular condition, not his condition during
a flareup. See R. at 863-67. Second, as for the 2014 and 2017 examinations, after the Board’s
decision issued, we held in Chavis that the ankylosis requirement in § 4.71a “can be met with
evidence of the functional equivalent of ankylosis during a flare.” 34 Vet.App. at 3-4. Because Mr.
Blanco presented evidence that his pain during flareups rendered him immobile, and he could
obtain a higher or staged rating based on his reduced range of motion during a flareup, the Board
should have addressed whether the examiner’s failure to provide an opinion about those flareups
rendered the examinations inadequate. See Correia, 28 Vet.App. at 167; Ardison, 6 Vet.App. at
Remand is warranted for the Board to adequately address the duty to assist and our decision
in Chavis in the first instance. See Allday, 7 Vet.App. at 527; see also Davis v. McDonough,
34 Vet.App. 131, 140 (2021) (“[W]here 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.”).
Although the veteran also argues for reversal, remand is the proper remedy here,
where the Board must provide an adequate statement of reasons or bases and apply newly decided
case law to the facts in the first instance. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating
that remand is appropriate where the Board has failed to provide an adequate statement of reasons
or bases); see also Davis, 34 Vet.App. at 140.
Because the claim is being remanded, the Court need not address Mr. Blanco’s additional
arguments that would lead to no broader remedy than a remand. See Mahl v. Principi, 15 Vet.App.
37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze
and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
In pursuing his claim on remand, the veteran will be free to submit additional argument and
evidence as to the remanded matter, and he has 90 days to do so from the date of the postremand
notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider any such
evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
For these reasons, the Board’s August 7, 2020, decision is SET ASIDE, and the matter is
REMANDED for further proceedings.
DATED: December 28, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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