Veteranclaims’s Blog

October 26, 2021

Single Judge Application; generally “claims for secondary service connection are not claims for increased compensation and are not part and parcel of a claim for increased compensation for the primary condition.” Gudinas v. McDonough, Vet.App. , , No. 19-2640, 2021 U.S. App. Vet. Claims LEXIS 659, at *31 (Apr. 16, 2021);

Filed under: Uncategorized — veteranclaims @ 8:55 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-1328
LAWRENCE C. VANWAGENEN, 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: Lawrence C. VanWagenen served three more or less contiguous periods in
the Army from 1994 to 2001. He challenges a November 2017 Board decision denying earlier
effective dates for the award of 40% ratings for a service-connected lumbar spine disability and
left lower extremity (left leg) sciatic radiculopathy, as well as increased ratings for left shoulder
and cervical spine disabilities. The veteran also contends that he was entitled to a separate rating
for headaches, which the Board treated as part and parcel of the cervical spine claim. The Secretary
concedes remand is necessary for the Board to consider whether a separate rating was warranted
for headaches but otherwise urges affirmance. The Court remands the headache issue. But as to
the other matters on appeal, the Court affirms.1
1The Board also decided three other issues, but the veteran indicates in his brief that he is not pursuing these
issues on appeal. The Court, therefore, dismisses the appeal as to them. See Pederson v. McDonald, 27 Vet.App. 276,
283 (2015) (en banc). The Board remanded a claim for cervical radiculopathy. The Court has no jurisdiction over that
issue, for which the Board has not issued a final decision. See Foreman v. Shulkin, 29 Vet.App. 146, 147 n.1 (2018).
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I. LUMBAR SPINE AND LEFT LEG DISABILITY CLAIMS
A. Background
For purposes of understanding the nature of these claims, it’s important to know that Mr.
VanWagenen has been service connected with compensable ratings for several disabilities since 2001. VA does not “arithmetically” add disability ratings together to arrive at a combined rating.
Gazelle v. McDonald, 27 Vet.App. 461, 468 (2016). Rather, VA established through regulation a
specific formula to capture “the efficiency of the individual as affected first by the most disabling
condition, then by the less disabling condition, then by other less disabling conditions, if any, in
the order of severity.” 38 C.F.R. § 4.25 (2020). Thus, the veteran here had “combined ratings”
throughout the relevant period assigned via the table in § 4.25 to reflect “the appropriate monthly
compensation award.” Gazelle, 27 Vet.App. at 468. A corollary of this system is that increasing or
decreasing a single disability rating may not increase or decrease a veteran’s combined disability
rating. For example, the overall rating when combining 60% and 40% is 80% and remains 80%
even after a 20% rating is also added. See 38 C.F.R. § 4.25(a) (using this example).
In October 2001, Mr. VanWagenen sought service connection for lumbar strain. VA denied
the claim, and the veteran filed a Notice of Disagreement (NOD). In January 2003, VA awarded
service connection for “residuals of a low back injury with lumbar strain” and assigned a 20%
rating, effective October 2001. R. at 8489.
The veteran sought an increased rating for his lumbar spine disorder on July 26, 2004. The
RO issued a January 2005 rating decision continuing the 20% rating. It also awarded service
connection for left leg radiculopathy secondary to the lumbar disorder and assigned it a 10% rating.
Because of this, Mr. VanWagenen’s combined rating was 80% effective December 2003 (this is
important). The veteran again disagreed. VA subsequently increased the lumbar spine rating to
40%, effective February 2005. Per the table in § 4.25, his combined rating remained 80%, and a
letter accompanying the decision notified the veteran of that fact. R. at 7895.
In March 2009, Mr. VanWagenen filed increased-rating claims for his lumbar spine and
left leg radiculopathy disorders. The next rating decision is critical to this case. In April 2010, VA
purported to continue a 20% rating for his lumbar spine disorder and a 10% rating for his left leg
disability. A footnote in the code sheet stated that:
There was an error on the backfill giving an evaluation for 40% for the residuals of
low back injury with lumbar strain. There was never a rating done giving this
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evaluation and the veteran was never notified. The correction to 20% has been
made. This correction does not cause a change in payment.
R. at 7188. In other words, VA effectively reduced the 40% radiculopathy rating to 20%. But this
change did not alter the veteran’s combined rating—it remained 80% with the same effective date
of December 2003. R. at 7187. The decision itself and the accompanying letter clearly indicated
that the assigned lumbar spine rating was 20%, although they did not mention any correction of
the sort mentioned in the code sheet. R. at 7162, 7169. (An unrelated 2011 reduction in the rating
assigned to cervical spine radiculopathy brought the veteran’s combined rating down to 70%. R. at
6886.)
The veteran sought increased ratings for his lumbar spine and left leg radiculopathy
disabilities four years later. VA assigned 40% ratings for both disorders in a May 2015 decision,
effective July 18, 2014, bringing his combined rating to 100%.2 R. at 4016. Mr. VanWagenen filed
an NOD, disputing the effective dates (the issues on appeal), and pursued these matters to the
Board.
In its decision, the Board denied earlier effective dates for both 40% ratings. It noted that
Mr. VanWagenen’s “lumbar disability was increased to 40 percent” in a March 2006 decision “until
an April 2010 rating decision . . . appear[ed] to have mistakenly treated the veteran’s lumbar
disability as then-currently rated as 20 percent disabling and continued that rating in the decision.”
R. at 4. However, the Board observed that Mr. VanWagenen neither appealed the April 2010 rating
decision nor sought increased ratings for his lumbar spine and left leg conditions until July 2014.
Finding that the April 2010 rating decision became final, the Board then summarized the
law regarding effective dates for increased rating claims and determined that July 2014—the date
the veteran filed his most recent claims for increase—was the appropriate effective date because
there was no evidence of an increase in disability in the year prior to the July 2014 filing. See
38 U.S.C. § 5110(b)(3) (“The effective date of an award of increased compensation shall be the
earliest date as of which it is ascertainable that an increase in disability had occurred, if application
is received within one year from such date.”). Accordingly, the Board concluded, effective dates
earlier than July 2014 were not warranted for the 40% lumbar spine and left leg radiculopathy
ratings.
2 This combined 100% also included three new lower extremity ratings (of 30%, 20%, and 20%) first assigned
in the May 2015 rating decision. R. at 4018-19.
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B. Lumbar Spine Analysis
Mr. VanWagenen argues that he is entitled to an earlier effective date for the 40% lumbar
spine rating because the April 2010 rating decision effectively reduced that rating from 40% to
20% from October 2001 until July 2014 but never became final. This is so, he contends, because
the April 2010 rating decision and notice letter included “no indication that the rating was reduced
from 40% to 20%,” with the result that VA “misled [him] into believing that the current rating was
20% and that such rating was simply being continued.” Appellant’s Br. at 13 (quotation marks
omitted). Thus, because it was “impossible” for him “to appeal a decision of which he received no
notice,” he asserts that the April 2010 decision did not become final. Id. at 14.
But the Secretary maintains that, although VA may have improperly reduced his individual
lumbar spine rating from 40% to 20% in the April 2010 rating decision, no notice on this specific
issue was required because it did not cause a change in the veteran’s overall monthly compensation.
Thus, any impropriety in this part of the April 2010 decision did not prevent it from becoming
final. Secretary’s Br. at 12.
Claimants and their representatives have the right to “notice of any decision made by VA
affecting the payment of benefits or the granting of relief.” 38 C.F.R. § 3.103(b)(1) (2020). That
notice must include an identification of the issues adjudicated, a summary of the considered
evidence and applicable law, a listing of the adjudicator’s findings, and a disclosure of the right to
file an NOD. 38 C.F.R. § 3.103(f) (2020). To meet the notice requirements of § 3.103, therefore,
an explicit denial of a claim “must state, or clearly identify in some other manner, the claim(s)
being denied” and the decision doing so “must also meet the other requirements of [§ 3.103(f)],
including the reason for the decision, the date effectuated, and notice of appellate rights.” Ruel v.
Wilkie, 918 F.3d 939, 942 (Fed. Cir. 2019). If these requirements are not met, the claim remains
pending. Id. at 943.
Here, Mr. VanWagenen hasn’t shown that he received inadequate notice in the April 2010
rating decision. That decision and its accompanying letter clearly indicated that a 20% rating was
being assigned—or, as was said in a few places, “continued”—in response to his claim for an
increased rating for the lumbar spine. The decision further listed the evidence considered and
applicable rating criteria, explained why a 40% rating (the next higher rating) wasn’t warranted,
and advised how the veteran could seek review of the decision if he disagreed with it. R. at 7162-
66, 7171-72. Even excluding the code sheet footnote in which the RO explained that it thought a
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40% rating had never actually been implemented, the rating decision and notice letter appear to
meet all the notice requirements of § 3.103.
Mr. VanWagenen doesn’t specify any notice elements in § 3.103 that he thinks are missing.
Instead, he asserts that the April 2010 decision was misleading because it implied that a 20% rating
had merely been continued. It’s true that a claim remains pending if VA does not provide adequate
notice that it has been denied. Cogburn v. Shinseki, 24 Vet.App. 205, 210 (2010). But, as explained
above, the veteran here was clearly notified that his lumbar spine condition was entitled to no
higher than a 20% rating. He was also clearly informed the reasons for that determination, the
evidence considered, and his right to seek appellate review. In short, the April 2010 decision served
to unambiguously advise the veteran that he was not in receipt of a 40% rating. Even though the
Board found the RO’s actions to be erroneous, R. at 4, “grave procedural error” does not prevent a
rating decision from becoming final. Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002) (en
banc). Since the veteran has neither shown that notice was inadequate nor disputed that he didn’t
initiate a timely appeal, the Court discerns no clear error in the Board’s conclusion that the April
2010 decision became final.
Alternatively, even if there was notice error as Mr. VanWagenen alleges and the April 2010
decision remained pending, the veteran hasn’t shown prejudice. It is the appellant’s burden to
demonstrate that, but for the error, the result of the decision under review would have been
different. See Simmons v. Wilkie, 30 Vet.App. 267, 279-80 (2018), aff’d, 964 F.3d 1381 (Fed. Cir.
2020). Although he asserts that he would be entitled to an effective date earlier than July 2014 for
his 40% lumbar spine rating if the Court were to conclude that the April 2010 rating decision failed
to resolve the pending increased-rating claim, he does not explain how this would benefit him with
respect to his overall combined rating. As the Secretary notes, the April 2010 action with respect
to the lumbar spine rating did not change the veteran’s monthly compensation because his
combined rating before and after that decision remained 80% according to the rating table provided
under § 4.25. Mr. VanWagenen does not dispute this point in his reply brief.
In this regard, it’s notable that the veteran does not invoke any of the special notice
provisions applicable to rating reductions, see 38 C.F.R. § 3.105(e) (2020), violations of which the
Court has held void a reduction ab initio, see Hedgepeth v. Wilkie, 30 Vet.App. 318, 328-29 (2018).
And for a simple reason: § 3.105(e) does not apply where there is no change in an overall disability
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rating and, thus, no change in the monthly compensation payment. Stelzel v. Mansfield, 508 F.3d
1345, 1347 (Fed. Cir. 2007).
Thus, because the veteran has not demonstrated that the alleged § 3.103 error had any
negative effect on his monthly compensation payment or otherwise harmed him with respect to
the denial of an earlier effective date for his 40% lumbar spine rating, the Court affirms.
C. Left Leg Radiculopathy Analysis
Mr. VanWagenen also argues that his left leg radiculopathy rating claim has been pending
ever since the April 2010 rating decision because that claim was “part and parcel” of the lumbar
spine claim. Appellant’s Br. at 14. The Secretary disagrees.
In January 2020, the Court sua sponte stayed proceedings in this case pending a
precedential decision in Deck v. McDonough, No. 18-4178. That case, however, was in turn stayed
pending a precedential decision in Chavis v. McDonough, No. 18-2928, and the Court granted the
Secretary’s unopposed motion to modify the basis of the stay here from Deck to Chavis. A
precedential decision in Chavis issued a few months ago. __ Vet.App. , 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021), reh’g denied, 2021 U.S. App. Vet. Claims LEXIS 873 (May 18, 2021). The Court lifted the stay in this case, requested supplemental memoranda of law from the parties on whether and to what extent Chavis affected this appeal, and has received those submissions. Both parties firmly contend that Chavis does not affect the proper disposition of this case. Appellant’s Memo at 1, 5; Secretary’s Memo at 1. The Court agrees with the parties. Chavis considered whether the issues of increased ratings for Mr. Chavis’s bilateral lower extremity radiculopathy were part of his claim for a higher rating for an underlying lumbar spine disability. So far, fairly on point. But in concluding that the answer was yes, the Court engaged in, what Mr. VanWagenen aptly describes as, a “fact-driven” analysis, Appellant’s Memo at 2, based on the specific circumstances of Mr. Chavis’s “broadly worded, pro se filings,” Chavis, 2021 U.S. App. Vet. Claims LEXIS 873, at *29. Moreover, Chavis decided to “leave for another day the question whether issues of higher evaluations for radiculopathy are always part of claims seeking higher evaluations for the underlying spine disability.” Id. at *29 n.17 (emphasis added). Given Chavis’s circumstance-specific holding, the Court concludes that it does not govern the proper disposition of this case. Mr. VanWagenen’s “part and parcel” argument is incorrect. His lumbar spine and left leg radiculopathy claims were separately rated under different diagnostic codes, as the rating schedule 7 directs, effectively rendering them separate disabilities. See 38 C.F.R. 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2020) (“Evaluate any associated objective neurologic abnormalities . . . separately, under an appropriate diagnostic code.”). “[C]laims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims.” Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008). Indeed, the same day Chavis was decided, the Court held in another case that generally “claims for secondary service connection are not claims for increased compensation and are not part and parcel of a claim for increased compensation for the primary condition.” Gudinas v. McDonough, Vet.App. , , No. 19-
2640, 2021 U.S. App. Vet. Claims LEXIS 659, at *31 (Apr. 16, 2021).3
So, despite the Court’s conclusion above, even if the veteran were correct that his lumbar
spine rating claim remained pending, the left leg radiculopathy rating claim did not because it was
not a part of the spine claim. Moreover, Mr. VanWagenen asserts no notice errors in the April
2010 rating decision regarding its treatment of the left leg radiculopathy rating, and he does not
explain why he failed to appeal that matter if he disagreed with it. Accordingly, the April 2010
rating decision was final regarding that claim and any argument as to the effective date is not
properly presented.
II. LEFT SHOULDER AND CERVICAL SPINE CLAIMS
A. Background
In August 2001, Mr. VanWagenen, while still in service, underwent a VA examination of
his left shoulder and cervical spine. He reported that he injured his neck in a 1998 motor vehicle
accident and that he hurt his shoulder when he fell during basic training. He also informed the
examiner that he underwent surgery in 1998 to repair shoulder instability. The examiner diagnosed
“cervical strain, with disc space narrowing” and “internal derangement, left shoulder, surgery,
residual.” R. at 8577. On separation, the veteran sought disability compensation for these
3 Gudinas also rejected the assertion that VA’s generalized duty to maximize benefits altered this conclusion.
Id. at *32-33. As for Mr. VanWagenen’s contention that VA’s Adjudication Procedures Manual (M21-1) indicates
that radiculopathy is part and parcel of his lumbar spine condition because it instructs that “neurological complications
of spinal disease are contemplated in the evaluation criteria for spinal conditions,” the beginning of that same provision
makes clear that “[o]bjective neurological abnormalities associated with spinal disabilities are evaluated separately
from the spinal disability except . . . when IVDS is evaluated based on incapacitating episodes.” M21-1, Pt. III, sbpt.
iv, ch. 4, sec. A.5.d. In short, the M21-1 doesn’t help him.
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conditions. In a November 2001 rating decision, the RO granted service connection for both,
assigning a 20% rating for left shoulder derangement and a 10% rating for cervical strain.
Since this grant, Mr. VanWagenen was involved in several additional car accidents:
• In May 2003, he was involved in a “T-bone” vehicle collision. R. at 8289.
• In December 2003, “he was rear-ended at 60 miles per hour while he was standing
still.” Id.
• In December 2005, he reinjured his left shoulder in another car accident. R. at 3959.
• In February 2009, he was “rear[-]ended by a car going approximately ten miles an hour
causing” $2,300 of damage to his own vehicle. R. at 7028.
• In July 2009, he was “hit on the right passenger side” with enough force to push him
“into the oncoming traffic lane,” R. at 7039, and throw him “through the windshield,”
R. at 3958.
• In April 2013, the veteran was in another car accident, resulting in pain that radiated
throughout his upper extremities. R. at 3958.
• In April 2014, the veteran was involved in yet another car accident. R. at 5571.
In 2009, the veteran sought increased ratings for cervical strain and left shoulder
derangement. In response, VA issued an April 2010 rating decision continuing the 10% rating for
cervical strain, but proposing to reduce his left shoulder derangement rating to 10%. Mr.
VanWagenen disagreed and attended a VA hearing, during which he reported that his conditions
worsened after the February and July 2009 car accidents. In February 2011, VA effectuated the
reduction. Afterward, the veteran submitted a statement asserting entitlement to increased ratings
for cervical strain and left shoulder derangement. VA issued a Supplemental Statement of the Case
(SSOC) continuing the ratings for both conditions, concluding that his worsening symptoms were
related not to service but to postservice car accidents.
Mr. VanWagenen filed a Substantive Appeal. VA subsequently provided a June 2014
examination, in which the veteran reported that the onset of his worsened cervical strain and left
shoulder pain began after the multiple car accidents. He reported pain, burning, numbness, and the
inability to move his left arm. The examiner observed limited and painful movement, as well as
localized tenderness or pain on palpation of the joints and soft tissue of the cervical spine. VA
continued to deny increases for the same reasons articulated in its earlier SSOC.
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The veteran subsequently submitted additional evidence to support his claim. In turn, VA
requested another examination and opinion regarding the etiology of his worsened symptoms,
which were procured in October 2014. This examiner observed that Mr. VanWagenen was
involved in at least five postservice car accidents, including a July 2009 accident in which he was
reportedly thrown through a windshield. The examiner opined that, although his cervical strain
and left shoulder derangement symptoms had worsened since service, the worsening of his
conditions was most likely caused by the postservice injuries. VA relied on this examination to
continue the assigned ratings for those conditions in January 2015.
For good measure, VA also obtained an independent medical opinion in June 2015. The
physician opined that the “increase in manifestations” since service was “due to other mechanisms,
including post-service injuries.” R. at 3961–62. He explained that the veteran’s in-service shoulder
injury was “not severe enough” to cause a “progressive cervical spine condition” and that it was
not common for the shoulder surgery he underwent to cause such a condition either. Id. The
physician advised that the worsening of his conditions was caused by the veteran’s “aging, genetics,
and occupation,” but particularly by the “repeated and more severe injuries” associated with the
postservice car accidents. Id.
In the decision on appeal, the Board found that, based on the collective evidence, the
reduction of the left shoulder derangement rating from 20% to 10% was not proper. It restored this
20% rating, effective the date that VA had reduced it. However, the Board determined that neither
a rating higher than 20% for left shoulder derangement nor a rating higher than 10% for cervical
strain was warranted. It concluded that, although the symptoms associated with these conditions
became more severe after service, VA examiners opined that this worsening was caused by factors
unrelated to service, particularly the several postservice car accidents in which he was involved.
B. Analysis
Mr. VanWagenen argues that his worsened cervical strain and left shoulder derangement
symptoms should have been compensated with increased ratings despite the examiners’ attribution
of that worsening to factors unrelated to service. He contends that the worsened symptoms were
merely a “progression of the originally service-connected diagnoses.” Appellant’s Br. at 17. The
veteran also contends that the June 2015 opinion was inadequate because the VA examiner did not
“refute the medical evidence that shows that [his] service-connected disabilities worsened and
progressed” after the postservice car accidents. Id. at 18. He insists that the examiner merely opined
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that his service-connected disabilities did not cause the subsequent worsening and failed to provide
an opinion as to whether his service-connected disabilities actually worsened. These contentions
are without merit.
VA’s rating schedule is meant to compensate veterans for impairment in earning capacity
related to their service. 38 C.F.R. § 4.1 (2020); see McClain v. Nicholson, 21 Vet.App. 319, 321
(2007). Governing law recognizes various ways in which this nexus can be established. A current
disability might have arisen in service, arisen after service but have an in-service cause, or arisen
before service but been aggravated by it. See generally 38 C.F.R. § 3.303 (2020). Nexus may also
be available when a service-connected disability (or its therapy) causes or aggravates a disability
otherwise unrelated to service. 38 C.F.R. § 3.310(a)-(b) (2020); see Wanner v. Principi,
17 Vet.App. 4, 8 (2003). But the Court is not aware of any VA benefits statute or regulation that
requires compensation be paid for a service-connected condition’s worsening when that worsening
has been clearly attributed to non-service-connected causes, like multiple postservice car
accidents. The best Mr. VanWagenen offers is Mittleider v. West, 11 Vet.App. 181 (1998), but that
decision stands only for the proposition that symptoms should be attributed to a service-connected
cause when there is doubt as to their origin. So, if the Board’s findings on that matter have a
plausible basis in the record, the Court must affirm. Fears v. Wilkie, 31 Vet.App. 308, 314 (2019).
Here, the Board relied on VA opinions concluding that the subsequent worsening of Mr.
VanWagenen’s cervical strain and left shoulder derangement was not related to service. Rather,
they opined that his current symptomatology was caused by the postservice car accidents. To the
extent the veteran argues that his worsening symptoms were a “progression of the originally
service-connected” conditions, Appellant’s Br. at 17, he is simply asking the Court to credit his
own lay assessment of the evidence above the medical examiners’ judgment that the Board found
more probative. The Court cannot oblige. The Board is fully entitled to determine as a factual
matter that lay opinion is not competent on a specific medical issue. Jandreau v. Nicholson,
492 F.3d 1372, 1377 (Fed. Cir. 2007); see also King v. Shinseki, 700 F.3d 1339, 1345-46 (Fed.
Cir. 2012). That is what the Board did here. R. at 21.
The June 2015 independent medical examiner advised that the veteran’s in-service injury
and subsequent surgical repair were not likely to lead to progressively degenerative disabilities.
He specifically remarked that the “baseline manifestations due to the effects of the in-service”
injury were unrelated to “any increase in manifestations since that time,” which were “due to other
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mechanisms, including post-service injuries.” R. at 3961. For VA purposes, then, the symptoms of
Mr. VanWagenen’s left shoulder and cervical spine after the postservice car accidents were not
service connected and therefore not compensable.
The veteran’s argument that the examiner did not provide an opinion regarding whether his
original service-connected disabilities worsened is also unavailing because it relies on a strained
reading of the opinion. The June 2015 examiner observed that Mr. VanWagenen’s conditions
deteriorated over time—and he concluded that the worsening was caused by specific factors
unrelated to service. As the Board’s determination of service connection had a plausible basis in
the record, the Court affirms.
Mr. VanWagenen also asserts that the Board accepted as adequate the June 2015 opinion
even though VA impermissibly narrowed the scope of his inquiry. He argues that the RO worded
its instructions to the examiner so as to elicit a conclusion adverse to his claim. Although it is true
that the Board “may not suggest an answer or limit the field of inquiry by the expert,” Bielby v.
Brown, 7 Vet.App. 260, 268 (1994), the RO did no such thing here. It requested that the examiner
ascertain whether the worsening of his symptoms after service was due to the in-service injury or
to postservice causes or to provide an opinion explaining why such an opinion was not possible
and explicitly gave the examiner the opportunity to explain if the symptoms “cannot be
delineated.” R. at 3958. Thus, VA did not provide instructions insinuating that the postservice
worsening was not due to service or demand an opinion concluding the same. Instead, it asked a
specific question that it needed to have answered by a medical expert; specificity is not necessarily
a sign of bias. Accordingly, the Court rejects the contention that the examination was inadequate
for rating purposes in this respect.
The veteran next asserts that the Board failed to ensure that the duty to assist was satisfied
when VA did not provide him with the curriculum vitae of the June 2015 examiner after he
requested it. R. at 3868. Although acknowledging that this information was not provided, the
Board concluded that it was not necessary to do so because Mr. VanWagenen didn’t provide “any
specific reason why the . . . clinician is not qualified to give a competent opinion” and, “[o]n the
face of the June 2015 opinion, there is nothing to indicate that the examiner is not qualified to
perform the necessary review and give an adequate opinion.” R. at 8 (citing Nohr v. McDonald,
27 Vet.App. 124 (2014).
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VA is entitled to apply a presumption of competency in reviewing the opinions of VA
medical examiners. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). This means
that, to challenge the qualifications of a VA examiner, a claimant must raise the issue of
competency before VA. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011). We held in
Nohr that, when a claimant requests information regarding an examiner’s credentials in order to
challenge them, VA is obligated either to provide the information or to explain why it’s not
necessary to do so. 27 Vet.App. at 132.
Here, Mr. VanWagenen made a request for the examiner’s credentials, stating that he
wanted them because VA had “failed according to case law to provide” them. R. at 3868. The
Board found that the veteran offered no reason why the examiner was not qualified to give a
competent opinion and that the opinion itself did not bring into question the examiner’s
competency. The Board likewise distinguished Nohr on the grounds that the examiner there
brought her competency into question, but the Board did not provide any reasons for not complying
with the veteran’s request for her credentials. Whereas, here, Mr. VanWagenen indicated that he
asked for his examiner’s curriculum vitae simply because he erroneously thought that VA had to
disclose it automatically. Despite Mr. VanWagenen’s assertion to the contrary, the Board’s decision
here complies with Nohr.
But even assuming that the Board somehow erred in its assessment of the June 2015
opinion or VA’s obligations in responding to the veteran’s challenge to the examiner’s competency,
Mr. VanWagenen has neglected to show that such error prejudiced him. See 38 U.S.C.
§ 7261(b)(2) (obliging the Court to “take due account of the rule of prejudicial error”). On appeal,
a veteran must show not only that the Board erred but also that its error was prejudicial—i.e.,
affected the outcome of the case or prevented an appellant’s effective participation in the process.
Simmons v. Wilkie, 30 Vet.App. 267, 279 (2018), aff’d, 964 F.3d 1381 (Fed. Cir. 2020). Here, the
June 2015 independent medical examiner was only the last in a series of VA examiners who
uniformly attributed worsened left shoulder and cervical spine symptoms to postservice car
accidents. Mr. VanWagenen doesn’t challenge any of those unfavorable opinions. The Board did
not discount those other opinions; indeed, it cited them as probative evidence. R. at 19-21. Nor did
the Board cite the June 2015 opinion as especially probative or otherwise necessary to its decision.
In light of the formidable remaining unchallenged negative medical evidence attributing the
aggravation of the veteran’s cervical spine and left shoulder conditions to postservice car accidents,
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the Court cannot see how potential Board error with respect to one piece of evidence prevented
the veteran’s participation in his appeal or led the Board to deny claims that it otherwise wouldn’t.
See Simmons, 30 Vet.App. at 285 (noting that prejudice is assessed “based on the facts and
circumstances presented in the entire record”).
Finally, Mr. VanWagenen argues that the Board should have adjudicated a claim for TDIU
in the decision on appeal because it was “part and parcel” of the cervical spine and left shoulder
claims. Appellant’s Br. at 25. The Board has the discretion to bifurcate issues before it and address
them in separate decisions. See Locklear v. Shinseki, 24 Vet.App. 311, 315 (2011). Here, the Board
did not adjudicate the issue of TDIU because the veteran requested a hearing on that issue that had
yet to take place. R. at 4. The Board indicated that it would adjudicate entitlement to TDIU after
the hearing was conducted. Thus, the veteran’s assertion that the issue of TDIU remains pending
so long as the claims for increase remain pending is simply beside the point, because TDIU is still
pending. It is just not yet ripe for adjudication by the Board. The veteran cannot now criticize the
Board for postponing adjudication of entitlement to TDIU when that is what he asked the Board
to do.
III. SEPARATE HEADACHE RATING
Finally, Mr. VanWagenen asserts that the Board “failed altogether to address whether a
separate rating for headaches and migraines [was] warranted” because the evidence indicated that
his cervical spine disability manifested in “symptoms contemplated” by “higher” and “separate”
ratings under DC 8100. Appellant’s Br. at 20, 24; see 38 C.F.R. § 4.124a. The Secretary concedes
remand on this point, and the Court therefore remands the matter. On remand, in addition to the
parties’ arguments, the Board should consider to the extent relevant this Court’s intervening
decision in Holmes v. Wilkie, 33 Vet.App. 67 (2020).
IV. CONCLUSION
The Court has fully considered the veteran’s remaining arguments but finds them
unpersuasive. Based on the foregoing, the Court AFFIRMS those portions of the November 30,
2017, Board decision denying earlier effective dates for the 40% ratings assigned to the lumbar
spine disability and left leg sciatic radiculopathy, as well as denying increased ratings for the
cervical spine and left shoulder derangement disabilities. The Court VACATES the portion of the
14
decision pertaining to headaches and REMANDS that matter for further proceedings. And the
Court DISMISSES the balance of the appeal.
DATED: June 29, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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