Veteranclaims’s Blog

January 3, 2022

Single Judge Application; Spellers v. Wilkie, 30 Vet.App. 211, 218 (2018) (holding that § 4.120 requires consideration of impairment of motor and sensory function when assigning a rating for each neurological condition);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3840
SYLVESTER JONES, APPELLANT,
V.
ROBERT L. WILKIE,
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 Sylvester Jones served the Nation honorably in the United
States Army. In this appeal, which is timely and over which the Court has jurisdiction,1 he contests
a June 4, 2018, decision of the Board of Veterans’ Appeals that denied (1) a disability rating greater
than 20% prior to April 29, 2015, for degenerative disc disease of the lumbar spine, (2) a disability
rating greater than 10% prior to April 29, 2015, for radiculopathy of the right leg; and (3) a
disability rating greater than 10% prior to April 29, 2015, for radiculopathy of the left leg. Because
the Board failed to provide an adequate statement of its reasons or bases for denying higher
disability ratings, the Court will set aside the Board’s decision and remand these matters for further
proceedings.
The Board increased appellant’s back and right and left leg radiculopathy ratings to 40%
since April 29, 2015. These are favorable findings that the Court cannot disturb.2 Furthermore,
appellant does not challenge these ratings on appeal, and the Court considers any appeal as to them
abandoned.3 Finally, the Board remanded claims for an increased rating for a left hip disability,
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
3See Pederson v. McDonald, 27 Vet.App. 276, 281-85 (2015) (en banc).
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increased ratings for bilateral knee disabilities, and a total disability rating based on individual
unemployability (TDIU). These remanded matters are not before the Court.4
I. ANALYSIS
Appellant argues that in denying a higher rating for his back disability effective before
April 29, 2015, the Board erred in relying on October 2012 and November 2014 VA examination
reports. He contends that these examinations failed to account for his increased symptoms during
flareups and for the ameliorative effects of medication and treatment on his back symptoms. He
also argues that the Board failed to consider whether he was entitled to a disability rating greater
than 10% for his bilateral leg radiculopathy prior to April 29, 2015, under different diagnostic
codes (DCs), particularly DC 8620 and 8720 for neuritis and neuralgia, respectively. The Secretary
generally defends the Board’s decision and urges affirmance because he argues any errors did not
prejudice appellant.
The Board’s decision regarding the degree of disability under the rating schedule is a factual
determination the Court reviews 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
Similarly, the Court reviews Board determinations about the adequacy of medical opinions
for clear error.7 A medical opinion is adequate when it is “based upon consideration of the
veteran’s . . . medical history and examinations and also describes the disability in sufficient detail”
so that the Board’s “evaluation of the claimed disability will be a fully informed one.”8 “It is the
factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes
probative value to a medical opinion.”9
For all its findings on a material issue of fact and law, the Board must support its decision
with an adequate statement of reasons or bases that enables a claimant to understand the precise
4 See Breeden v. Princpi, 17 Vet.App. 475, 478 (2004) (per curiam order).
5 Tedesco v. Wilkie, _ Vet.App. , , 2019 U.S. App. Vet. Claims LEXIS 1444, at *5 (Aug. 16, 2019);
Prokarym v. McDonald, 27 Vet.App. 307, 312 (2015); see also 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski,
1 Vet.App. 49, 53 (1990).
6 Gilbert, 1 Vet.App. at 53 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
7 D’Aries v. Peake, 22 Vet.App. 97, 104 (1998); see Gilbert, 1 Vet.App. at 52.
8 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
9 Nieves-Rodriguez, 22 Vet.App. at 304.
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bases for the Board’s decision and facilitates review in this Court.10 If the Board failed to do so,
remand is appropriate.11
A. Rating for Back Disability
Appellant’s back disability is rated under 38 C.F.R. § 4.71a, the General Rating Formula
for Diseases and Injuries of the Spine. That regulation provides for a 20% rating (appellant’s pre-
April 29, 2015, assigned rating) where flexion of the thoracolumbar spine is greater than 30
degrees but not more than 60 degrees; or the combined range of motion of the spine is no more
than 120 degrees; or the disability results in muscle spasms or guarding severe enough to cause an
abnormal gait or spinal contour.12 A 40% rating is assigned where a veteran’s forward flexion of
the thoracolumbar spine is 30 degrees or less or features favorable ankylosis.13 A 50% rating is
assigned for veterans with unfavorable ankylosis of the entire thoracolumbar spine.14 And finally,
a 100% rating is warranted for unfavorable ankylosis of the entire spine.15
But a veteran’s assigned DC is not the only thing VA must consider when rating a
musculoskeletal disability involving limitation of motion. VA must also consider evidence of pain,
weakened movement, excess fatigability, or incoordination and determine the amount of functional
loss the disability causes.16 The Board must also consider the functional impairment that comes
when a veteran experiences flareups.17
Here, the October 2012 VA examiner noted that appellant reported flareups that resulted
in his being unable to move.18 However, the examiner failed to explain any additional functional
impairment as a result of these reported flareups, and the Board did not explain its reliance on the
examiner’s opinion. The November 2014 VA examiner noted that appellant did not report
flareups.19 But, appellant did report falling 3 or 4 times in 2 months because his back locked up
10 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
11 Tucker v. West, 11 Vet.App. 369, 374 (1998).
12 38 C.F.R. § 4.71a (2019).
13 Id.
14 Id.
15 Id.
16 See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); see also DeLuca v. Brown, 8 Vet.App. 202, 204-07 (1995).
17 See Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017); Jones (Michael H.) v. Shinseki, 23 Vet.App. 382, 390 (2010).
18 R. at 4065.
19 R. at 1150.
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and gave out.20 In April 2014, VA treatment records show appellant’s reports of pain at a “6-7/10”
with “exacerbations to 10/10, occurring 2-3 times a month.”21 It is not clear whether the November
2014 VA examiner considered these reports of flareups in his opinion, nor did the Board explain
its reliance on the examination in denying a higher rating for appellant’s back disability.
Additionally, it is not clear to what extent the Board took into account the ameliorative
effects of appellant’s medication and treatment when it made its rating determination. The Court
has made clear that “the Board may not deny entitlement to a higher rating on the basis of relief
provided by medication when those effects are not specifically contemplated by the rating
criteria.” 22 The General Rating Formula for Diseases and Injuries of the Spine does not
contemplate rating based on “relief provided by medication.”23 The record contains evidence of
pain treatments and prescribed medication to relieve appellant’s back symptoms.24 The Board
discussed neither this evidence nor how such treatment may have improved appellant’s symptoms.
The Board should address this matter fully on remand.
Finally, the Secretary concedes that the October 2012 and November 2014 VA
examinations are inadequate for rating purposes.25 However, he argues that the April 2015 VA
examination cured any deficiencies in the prior examinations and appellant was thus not
prejudiced.26The Court rejects this argument because the Board relied on the April 2015 VA
examination to increase appellant’s back disability rating as of that date and no earlier, instead
relying on the earlier VA examinations to deny an increased rating prior to April 2015. Thus, the
Secretary’s argument is nothing more than a post hoc rationalization of the Board’s decision, and
“it is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this
Court.”27
B. Ratings for Bilateral Leg Radiculopathy
20 R. at 1149.
21 R. at 537.
22 Jones (David J.) v. Shinseki, 26 Vet.App. 56, 63 (2012).
23 38 C.F.R. § 4.71a.
24 See, e.g., R. at 326.
25 Secretary’s Brief (Br.) at 9.
26 Id. at 10.
27 Smith v. Nicholson, 19 Vet.App. 63, 73 (2015); see also In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002)
(“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.'” (quoting Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).
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Appellant’s bilateral radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8520 for
incomplete paralysis of the sciatic nerve. Pursuant to DC 8520, a 10% disability rating is warranted
for mild incomplete paralysis, a 20% rating is warranted for moderate incomplete paralysis, a 40%
rating is warranted for moderately severe incomplete paralysis, and a 60% rating is warranted for
severe incomplete paralysis with marked muscular atrophy.28 A note preceding the various DCs
under 38 C.F.R. § 4.124a provides that “disability[ies] from the following diseases and their
residuals may be rated from 10[%] to 100[%] in proportion to the impairment of motor, sensory,
or mental function.” 29 This note echoes another general principle for rating neurological
conditions, that “[d]isability in this field is ordinarily to be rated in proportion to the impairment
of motor, sensory, or mental function.”30 It further notes that, when rating nerve injuries, “attention
should be given to the site and character of the injury, the relative impairment in motor function,
trophic changes, or sensory disturbances.”31
Appellant argues that the Board erred in failing to consider whether he could be awarded
separate ratings greater than 10% for neuritis and neuralgia. Neuritis is “characterized by loss of
reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating.”32 The
regulation provides that neuritis “is to be rated on the scale provided for injury of the nerve
involved, with a maximum equal to severe, incomplete, paralysis.”33 Neuralgia is defined as “dull
and intermittent pain” and “is to be rated on the same scale, with a maximum equal to moderate
incomplete paralysis.”34
Appellant points to symptoms of paresthesias, dysesthesias, sensory disturbances, and pain
to illustrate that ratings for neuritis and neuralgia are warranted. However, the October 2012 and
April 2015 VA examiners make no reference to neuritis or neuralgia and seem to generally
attribute all of appellant’s symptoms to his sciatic nerve, without specifying a diagnosis.
Additionally, the Board references appellant’s sensory symptoms and pain in discussing his
incomplete paralysis, but it is not clear whether these symptoms are represented in the 10% rating
28 38 C.F.R. § 4.124a, DC 8520 (2019).
29 38 C.F.R. § 4.124a.
30 38 C.F.R. § 4.120 (2019).
31 Id.
32 38 C.F.R. § 4.123 (2019).
33 Id.
34 38 C.F.R. § 4.124.
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assigned for each leg before April 29, 2015. Thus, remand is warranted for the Board to determine
whether appellant’s sciatic nerve symptoms are all a part of the same underlying condition,
incomplete paralysis, or attributable to different conditions or diagnoses. The Court notes the
medical nature of such determinations and encourages the Board to consider whether a medical
opinion is necessary. We leave for another day whether separate ratings can be assigned, as it is
not yet clear that such ratings would be warranted in this matter.35
C. Appellant’s Rights on Remand
Because the Court is remanding these matters to the Board for readjudication, the Court
need not address any remaining arguments now, and appellant can present them to the Board.36
On remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s postremand notice.37 The Board must consider any such additional evidence or
argument submitted.38 The Board must also proceed expeditiously.39
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the June 4, 2018, Board decision and REMANDS this matter for further proceedings
consistent with this decision.
DATED: September 27, 2019
Copies to:
Forrest A. Jones, Esq.
VA General Counsel (027)
35 See Spellers v. Wilkie, 30 Vet.App. 211, 218 (2018) (holding that § 4.120 requires consideration of impairment of
motor and sensory function when assigning a rating for each neurological condition)
; Tucker, 11 Vet.App. at 374.
36 Best v. Principi, 15 Vet.App. 18, 20 (2001).
37 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
38 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
39 38 U.S.C. §§ 5109B, 7112.

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