Veteranclaims’s Blog

August 4, 2020

Single Judge Application; radiculopathy; Board is required to discuss relevant provisions from the VA’s Adjudications Procedures Manual (M21-1), see Overton v. Shinseki, 30 Vet.App. 257, 264 (2018), despite not being bound by the manual, see Gray v. Shinseki, 875 F.3d 1102, 1108 (Fed. Cir. 2017); M21-1 contains general guidelines for distinguishing between “mild,” “moderate,” “moderately severe,” and “severe” levels of incomplete paralysis; M21-1, pt. III, subpt. iv, ch. 4, § N.4.c (June 2018);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:28 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1734
LARRY D. SHUTTLESWORTH, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: The appellant, Larry D. Shuttlesworth, appeals through counsel from
that part of a November 14, 2018, Board of Veterans’ Appeals (Board) decision that denied an initial disability rating higher than 10% for right lower extremity radiculopathy.1 The appeal is timely and the Court has jurisdiction over this matter pursuant to 38 U.S.C. §§ 7252(a) and 7266.
Single-judge disposition is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s November 2018 decision that denied a higher disability rating for right extremity radiculopathy and remand the matter for adjudication consistent with this decision.
1 The Board denied a disability rating higher than 50% for Mr. Shuttlesworth’s service-connected lumbar
spine disability; a disability rating higher than 30% for a service-connected psychiatric disability; and an effective
date earlier than July 29, 2010, for total disability based on individual unemployability. In his brief, Mr. Shuttlesworth
states that he is only appealing the issue of right lower extremity radiculopathy. See Appellant’s Brief at 2. Based on
his statement and because he does not allege error with respect to the Board’s decision addressing his lumbar spine,
psychiatric disability, or TDIU, any appeal of these matters is abandoned. See Pederson v. McDonald, 27 Vet.App.
276, 285 (2015) (en banc) (holding that, where an appellant abandons an issue or claim, the Court will not address it);
Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned).
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I. BACKGROUND
Mr. Shuttlesworth served on active duty in the U.S. Navy from November 21, 1966 to
November 30, 1967, including service in the Republic of Vietnam.
In an August 2001, rating decision, VA increased Mr. Shuttlesworth’s rating for a lumbar
spine disability from 40% to 50%, noting that he had a spine disability with right lower extremity
radiculopathy. See Record (R.) at 1870-73. In July 2010, he filed for an increased rating for his
back disability and radiculopathy. Mr. Shuttlesworth underwent a VA compensation and pension
examination in September 2010, and the examiner noted that his pain had progressively worsened
over the last 5 to 7 years.
In January 2011, VA granted Mr. Shuttlesworth a separate disability rating for right-sided
lower extremity radiculopathy related to his service-connected back disability, assigning a 10%
disability rating for mild incomplete paralysis of the sciatic nerve below the knee. 38 C.F.R.
§ 4.124a, Diagnostic Code (DC) 8520 (2020). Mr. Shuttlesworth filed a Notice of Disagreement
and underwent a VA compensation and pension examination in August 2011. The August 2011
VA examiner diagnosed Mr. Shuttlesworth with a compression fracture at L2, with right-sided
radiculopathy, and identified the affected nerves as the sciatic, peroneal, and tibial. The examiner
noted that his condition caused pain that affected his daily activities. In a December 2014
Statement of the Case, VA continued the 10% disability rating, and Mr. Shuttlesworth perfected
an appeal to the Board.
In November 14, 2018, the Board denied a disability rating higher than 10% for
radiculopathy of the right lower extremity. The Board considered the lay evidence and the medical
evidence from 2009, 2010, and 2011. Relying in part on the August 2011 VA examination, the
Board denied a rating higher than 10%, for mild, inconsistent paralysis of the sciatic nerve.
On appeal, Mr. Shuttlesworth argues that the Board provided an inadequate statement of
reasons or bases for denying a higher rating for radiculopathy. Specifically, he asserts that the
Board overlooked favorable evidence, failed to discuss separate ratings for each affected nerve,
and disregarded the fact that the medical evidence on which it based its decision was not
contemporaneous.
In response, the Secretary argues that the Board’s statement of reasons or bases is adequate
and that Mr. Shuttlesworth failed to demonstrate prejudicial error in the decision.
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II. ANALYSIS
Mr. Shuttlesworth’s right lower extremity radiculopathy is rated as 10% disabling under
38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520, corresponding to “mild” incomplete paralysis of
the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520 (2020); see R. at 1144-50. DC 8520 also
contemplates 20%, 40%, and 60% evaluations for “moderate,” “moderately severe,” and “severe”
incomplete paralysis, respectively, as well as an 80% evaluation for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. The rating code does not define “mild,” “moderate,” or “severe.” Id.
The Board’s disability rating determinations are findings of fact subject to the “clearly
erroneous” standard of review. See Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). “A factual
finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
When making factual determinations, the Board is required to provide a written statement
of the reasons or bases for 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.
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56–57 (1990). 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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table); Gilbert, 1 Vet.App. at 57.
A. Schedular Rating
Mr. Shuttlesworth argues that the Board provided an inadequate statement of reasons or
bases for awarding a 10% disability rating for “mild” incomplete paralysis below the knee. He
asserts that the Board overlooked favorable medical evidence showing that he was unsteady on his
feet, that he had leg and foot weakness, that he walked with a cane, and that he had an antalgic
gait2. See R. at 758-59 (August 2011 VA medical examination report). Mr. Shuttlesworth contends
2 “Antalgic gait” is “[a] limp adopted so as to avoid pain on weight-bearing structures (as in hip injuries)
characterized by a very short stance phase.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 745 (33d ed. 2020).
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that this evidence suggests a disability rating higher than 10%, and the Board’s failed to address
this evidence or explain its rejection. See Appellant’s Brief at 6-7.
The Board is presumed to have considered all the evidence and is not required to discuss
every piece of evidence. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Dela Cruz
v. Principi, 15 Vet.App. 143, 149 (2001) (“The Court has consistently found that a discussion of
all evidence is not required when, as in the present case, the Board has supported its decision with
thorough reasons or bases regarding the relevant evidence[.]”). In this case, the Board considered
medical evidence from 2009 and 2010, and discussed the August 2011 VA medical examination
report, which concluded that Mr. Shuttlesworth’s right lower extremities were clinically normal.
See R. at 11; see also R. at 1061 (August 2011 exam report finding no abnormalities in in the lower
extremities). The Board found that the 2011 examination report reflected that Mr. Shuttlesworth
had normal coordination, normal reflexes for the knee and ankle, normal light sensory touch, and
resistance against active movement. R. at 11; see also R. at 1061-62.
Although the Board addressed Mr. Shuttlesworth’s argument as to why he did not receive
a higher, 20% disability rating based on the September 2010 VA examination report, the Board
did not generally explain why he was not entitled to a higher rating for leg weakness, unsteadiness,
use of a cane, antalgic gait, inability to stand for more than 2 to 5 minutes, daily deep aching pain
measured at 7 out of 10 points in terms of intensity, and intermittent 10/10 LS pain for 6 days a
week. See R. at 757. The Board is required to discuss relevant provisions from the VA’s
Adjudications Procedures Manual (M21-1), see Overton v. Shinseki, 30 Vet.App. 257, 264 (2018), despite not being bound by the manual, see Gray v. Shinseki, 875 F.3d 1102, 1108 (Fed. Cir. 2017).
The M21-1 contains general guidelines for distinguishing between “mild,” “moderate,”
“moderately severe,” and “severe” levels of incomplete paralysis of the lower extremities, which
is the issue in this appeal. See M21-1, pt. III, subpt. iv, ch. 4, § N.4.c (June 2018)
. Because there
are M21-1 provisions that describe conditions that support each specific level of incomplete
paralysis, the Board’s discussion of these provisions is part of its duty to provide an adequate
statement of reasons or bases. The Board’s failure to discuss relevant M21-1 provisions or
otherwise adequately explain its denial of a “moderate” incomplete, 20% disability rating given
Mr. Shuttlesworth’s symptoms renders its statement of reasons or bases inadequate. See Allday,
7 Vet.App. at 527 (holding that the Board’s statement “must be adequate to enable a claimant to
understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).
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Accordingly, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that
remand is the appropriate remedy “where the Board . . . failed to provide an adequate statement of
reasons or bases for its determinations”).
B. Separate Disability Ratings
The Court has determined that a remand is necessary, but the Court will address Mr.
Shuttlesworth’s argument with respect to the Board’s failure to discuss separate ratings for each
affected nerve. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that the Court may
address an appellant’s other arguments to provide guidance on remand). In the summary of sensory
findings, the August 2011 VA examination report identified the “[a]ffected nerve(s): “L3-S1
(sciatic, peroneal, and tibial).” R. at 1061. Mr. Shuttlesworth argues that the Board should have
addressed whether his condition warranted the assignment of separate ratings for each affected
nerve. See Appellant’s Br. at 7-8.
In his brief, the Secretary stated that there was “no separate symptomatology attendant to
each separate nerve . . . [i]n other words the symptomatology would necessarily overlap or be
duplicative.” Secretary’s Br. at 8. Therefore, the Secretary concluded that a rating for each separate
nerve would result in pyramid ratings, which is prohibited. See 38 C.F.R. § 4.14 (2020). The
pyramiding regulation, however, recognizes that “[d]isability from injuries to the . . . nerves may
overlap to a great extent, so that special rules are included in the appropriate bodily system for
evaluation.” Id (emphasis added). There are no special instructions in § 4.124a that address or
prohibit separate disability ratings for DC 8520 (sciatic nerve), 8521 (external popliteal nerve or
common peroneal nerve), 8522 (musculocutaneous nerve or superficial peroneal), 8523 (anterior
tibial nerve or deep peroneal), 8524 (internal popliteal tibial nerve), and 8525 (posterior tibial
nerve). Given multiple regulations that expressly forbid separate evaluations, the absence of
instructions in §4.124a suggests that separate ratings are not prohibited. See Lyles v. Shinseki,
29 Vet.App. 107, 114-15 (2017). Here, neither the Board nor the medical examiner addressed
whether Mr. Shuttlesworth’s symptoms were separate and distinct or whether particular symptoms
were attributable to a specific nerve. On remand, the Board should ensure that the medical expert
addresses these questions.
C. New Medical Examination
Given the disposition of a remand, the Court need not address Mr. Shuttlesworth’s
argument that a new, contemporaneous medical examination is warranted. See Mahl v. Principi,
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15 Vet.App. 37, 38 (2001) (per curiam order) (holding that “if 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”); see also Best v. Principi, 15 Vet.App. 18, 19 (2001) (per curiam order)
(holding that the Court generally decides cases on the narrowest possible grounds and therefore is
not required to rule upon other allegations of error in effecting a remand). On remand, Mr.
Shuttlesworth is free to present this argument, as well as any additional arguments and evidence,
to the Board on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board
that “[a] remand is meant to entail a critical examination of the justification for the [Board’s]
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s November
14, 2018, decision is VACATED, and the matter on appeal is REMANDED for further
proceedings consistent with this decision.
DATED: July 31, 2020
Copies to:
James G. Fausone, Esq.
VA General Counsel (027)

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