Excerpt from decision below:
"A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," 38 C.F.R. § 3.310(a) (2010), or (2) aggravated by an already service-connected disease or injury,"whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition," Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4375
THURMAN SUGGS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL,Judge: ThurmanSuggs appeals throughcounselaJuly29,2009,
BoardofVeterans'
Appeals (Board) decision denying entitlement to VA benefits for (1) a
right arm disability; (2) a left
shoulder and arm disability; (3) a right leg disability; and (4) a left
leg disability, all including as
secondary to his service-connected cervical or lumbar spine disabilities.1
Record (R.) at 3-16. The
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to
review the July 2009 Board
decision. The Court concludes that the Board provided an adequate
statement of its reasons or bases
for its decision and properly referred Mr. Suggs's claims for increased
disability ratings for his
service-connected cervical and lumbar spine disabilities to the regional
office. However, the Court
also concludes that the Board decision contains inconsistent findings.
Consequently, the Court will
modify the July 29, 2009, Board decision to eliminate the inconsistent
findings and will affirm the
decision as modified.
The Board also remanded Mr. Suggs's claim for entitlement to VA benefits
for headaches, including as
secondary to a service-connected cervical spine disability, and that claim
is therefore not before the Court at this time.
See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions
of the Board); see also Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a
final decision that may be appealed (citing
38 C.F.R. § 20.1100(b) (1999))).
1
I. FACTS
Mr. Suggs served on active duty in the U.S. Army from April 1982 to August
1982, from
December 1990 to May 1991, and from January 2003 to March 2004, with
additional service in the
Army National Guard.
In July1998, Mr. Suggs began experiencingbackpain that radiated to his
left arm and caused
numbness in his left shoulder and arm. He was subsequentlydiagnosed with a
ruptured cervical disc
and degenerative disease of the cervical spine and underwent a cervical
discectomy in March 1999.2
In August 1999, Mr. Suggs filed claims for VA benefits for a back
condition and a nerve condition
of the left shoulder and arm. In March 2000, a VA regional office denied
these claims, which it
characterized as claims for benefits for degenerative disc disease of the
cervical spine with pain and
tinglingoftheleftshoulderandarm,statuspost-operativecervicaldiscectomy,
anddegenerativedisc
disease of the lumbar spine, because it found there was no medical nexus
between these conditions
and his service. Mr. Suggs did not appeal that decision and it became
final.
In March 2002, Mr. Suggs reinjured his back when he slipped and fell down
a steep hill
during a training exercise. A subsequent x-ray revealed moderate to severe
degenerative changes
of his cervical spine with disc space narrowing. In March 2003, Mr. Suggs
sought treatment at an
Armymedicalcenterforhis continuingbackpainandwasdiagnosedwithcervical and
lumbar spinal
stenosis, lumbar spondylosis with degenerative disc disease, and bilateral
lower extremity
radiculopathy.3
In March 2004, Mr. Suggs filed claims for benefits for neck, lower back,
bilateral arm, and
bilateral leg conditions. In October 2004, the regional office awarded him
benefits for degenerative
disc disease of the cervical spine, status post-operative cervical
discectomy, and assigned a 20%
disability rating for that condition. However, the regional office denied
his other claims. Mr. Suggs
filed a timely Notice of Disagreement with that decision and subsequently
perfected his appeal.
A discectomy is "excision of an intervertebral disk." DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 553
(31st ed. 2007) [hereinafter DORLAND'S].
Spinal stenosis is "narrowing of the vertebral canal, nerve root canals,
or intervertebral foramina of the lumbar
spine caused by encroachment of bone upon the space. . . . The condition
may be either congenital or due to spinal
degeneration." DORLAND'S at 1795. Spondylosis is "ankylosis of a vertebral
joint." Id. at 1780. Ankylosis is
"immobility and consolidation of a joint due to disease, injury, or
surgical procedure." Id. at 94.
3
2
2
In February 2007, Mr. Suggs sought treatment at a VA medical center for
pain in his neck
and arms. A magnetic resonance image revealed severe compression of the
spinal cord and he
underwent a cervical decompressive laminoplasty.4
As a result, in May 2008, the regional office
awarded him an increased disability rating of 40% for his cervical spine
disability.
Inthemeantime,in September2007theBoardreopenedMr.Suggs's
previouslydeniedclaim
for benefits for a low back disability and remanded the claim to the
regional office for further
development, including a VA medical examination. Pursuant to this remand
order, Mr. Suggs
underwent a VA spinal examination in October 2008. At that time, Mr. Suggs
reported chronic neck
pain radiating into both arms, chronic low back pain radiating into both
legs, and weakness in his
upper and lower extremities. With respect to these complaints, the
examiner opined: "I do not think
that [Mr. Suggs] has anyseparate disabilityinvolving the upper or the
lower extremities. I think that
these are all part and parcel consistent with pain radiating from the neck
and lower back region."
R. at 60.
InJanuary2009,theregionalofficeawardedMr.
Suggsbenefitsfordegenerativediscdisease
of the lumbar spine and assigned a 20% disability rating for that
condition. In March 2009, the
regional office issued a Supplemental Statement of the Case that continued
to denyhis other claims.
In July 2009, the Board issued the decision currently on appeal, which
denied entitlement to
benefits for a right arm disability and a left shoulder and arm disability,
both including as secondary
to a service-connected cervical spine disability, as well as a right leg
disability and a left leg
disability, both including as secondary to a service-connected lumbar
spine disability. Specifically,
the Board denied these claims because it concluded that Mr. Suggs's pain
and numbness in his upper
and lower extremities were not separate disabilities but were instead
symptoms of his service-
connected cervical and lumbar spine disabilities.
A laminoplasty is an "incision completely through one lamina of a
vertebral arch with creation of a trough in
the contralateral lamina; the vertebral arch is then opened like a door,
with the trough acting as a hinge; performed to
relieve compression of the spinal cord or nerve roots." DORLAND'S at 1017.
4
3
II. ANALYSIS
A. Reasons or Bases
Mr. Suggs first argues that the Board's statement of reasons or bases for
its decision is
inadequate because it made "no clear statement as to why the evidence in
the record is insufficient
to substantiate a finding of secondaryservice connection for Mr. Suggs'[s]
disorders of the upper and
lower extremities which have been found to stem from his service[-]
connected spinal disorders."
Appellant's Brief (Br.) at 11. The Court disagrees.
A disability may be service connected on a secondary basis by
demonstrating that the
disability is either (1) "proximately due to or the result of [an already]
service-connected disease or
Previous HitinjuryNext Hit," 38 C.F.R. § 3.310(a) (2010), or (2) aggravated by an already
service-connected disease or
Previous HitinjuryNext Hit,"whether or not the additional impairment is itself a separate
disease or Previous HitinjuryNext Document caused by the
service-connected condition," Allen v. Brown, 7 Vet.App. 439, 448 (1995) (
en banc). As with any
finding or conclusion on a material issue of fact or law, the Board is
required to provide a written
statement of reasons or bases for its determination of a claimant's
entitlement to secondary service
connection. See 38 U.S.C. § 7104(d)(1). The 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. See
Gilbert v. Derwinski, 1 Vet.App. 49, 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 to
be 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). The Board maycommit error requiring remand
when it fails to provide
an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at
57.
With respect to his claims for benefits for a right arm disability and a
left shoulder and arm
disability, the Board determined that these conditions were merely
symptoms of his service-
connected cervical spine disabilityand not separate disabilities in and of
themselves. Generally, "all
disabilities, including those arising from a single disease entity, are to
be rated separately, and then
all ratings are to be combined pursuant to 38 C.F.R. § 4.25." Esteban v.
Brown, 6 Vet.App. 259, 261
(1993). However, "the rating schedule may not be employed as a vehicle for
compensating a
claimant twice (or more) for the same symptomatology; such a result would
overcompensate the
4
claimant for the actual impairment of his earning capacity." Brady v.
Brown, 4 Vet.App. 203, 206
(1993). Therefore, "evaluation of the same disability" or the "same
manifestation under different
diagnoses" is to be avoided. 38 C.F.R. § 4.14 (2010). Separate disability
ratings may not be
assigned if the disabilities are duplicative of each other or involve
overlapping symptomatology.
Esteban, 6 Vet.App. at 262 (holding that separate disability ratings may
be assigned where all of a
claimant's symptoms are "distinct and separate").
In support of its determination that Mr. Suggs's right arm disabilityand
left shoulder and arm
disability are symptoms of his service-connected cervical spine disability
and not separate
disabilities, the Board stated:
No medical evidence indicates that [Mr. Suggs] has a disability involving
either
upper extremity which is separate from his service-connected cervical
spine
disability. The evidence against [Mr. Suggs]'s claims includes the
following: (i) a
November 1999 VA examination report which notes that [Mr. Suggs]'s
complaints
of pain and tingling in his left shoulder and arm originate from the neck; (
ii) a March
1999 VA treatment record which attributes [Mr. Suggs]'s symptoms in his
upper
extremities to C4-5 disc protrusion on the left; (iii) a February 2003 VA
treatment
report which lists a diagnosis of cervical radiculopathy after [Mr. Suggs]
reported
pain and weakness in his left arm and shoulder; (iv) an October 2006 VA
treatment
record which indicates that the symptoms of radiating pain from the neck
to the left
shoulder and hand are consistent with cervical radiculopathy; (v) a
January 2007
[private medical] opinion . . . that the [] cervical disc between the
third and fourth
vertebra is pressing on the spinal cord; and (vi) an October 2008 VA
examination
report which indicates that [Mr. Suggs] has no separate disability
involving either
upper extremity, and that all symptoms are due to his service-connected
cervical
spine disability.
R. at 10-11. The Board also noted that, to the extent that Mr. Suggs had
been previously diagnosed
with muscle spasms in the left shoulder region, "spasm, like pain, is
merely a symptom and does not
constitute a disability." R. at 10 (citing Sanchez-Benitez v. West, 13 Vet.
App. 282, 285 (1999),
vacated in part and dismissed in part on other grounds sub nom. Sanchez-
Benitez v. Principi,
259 F.3d 1356 (Fed. Cir. 2001)). Contrary to Mr. Suggs's contention, the
foregoing analysis by the
Board clearlyinforms him and the Court of the reason his claims were
denied–i.e., that his right arm
condition and left shoulder and arm conditions aresymptoms of his service-
connected cervical spine
disability,not
separatedisabilitiescapableofserviceconnectiononeitheradirect
orsecondarybasis.
5
Therefore, the Court concludes that the Board's statement of reasons or
bases is adequate in this
regard. See Gilbert, 1 Vet.App. at 57.
With respect to Mr. Suggs's claims for benefits for bilateral leg
disabilities, the Board
likewise determined that these conditions were merely symptoms of his
service-connected lumbar
spine disability and not separate disabilities in and of themselves.
Specifically, the Board stated:
[A] February 2003 report notes [Mr. Suggs]'s complaints of low back pain
with a
tingling sensation down the left leg; the only diagnostic impression was
lumbar
radiculopathy. An October 2004 report notes [Mr. Suggs]'s complaints of
low back
painwith radiatingpaindownboth lowerextremities. And a March 2005 report
notes
[Mr. Suggs]'s radicular symptoms in both lower extremities. All of these
records
indicate that [Mr. Suggs]'s complaints of pain and tingling in his lower
extremities
are symptoms of his service-connected low back disability. Moreover, after
reviewing all VA and private medical records in the claims file, the Board
emphasizes that none of these records indicates that [Mr. Suggs]'s
neurological
symptoms in his legs are due to a disease or disability other than his
service-connected low back disability. . . .
In addition to these treatment records, the Board also notes that the
October 2008 VA
examination report provides the most probative evidence against [Mr. Suggs]
's
claims. After reviewing the claims file and examining [Mr. Suggs]'s spine
and lower
extremities, the examiner concluded that [Mr. Suggs] has no separate
disability
involving either lower extremity, and that all symptoms are due to his
service-connected lumbar spine disability.
R. at 13. As stated above, this statement informs Mr. Suggs and the Court
of the precise basis for
the Board's decision–i.e., that his bilateral leg conditions are
symptoms of his service-connected
lumbar spine disability, not separate disabilities capable of service
connection on either a direct or
secondary basis. Consequently, the Court concludes that the Board's
statement of reasons or bases
is adequate in this regard. See Gilbert, 1 Vet.App. at 57.
B. Roberson v. Principi
Mr. Suggs next argues that the Board erred "in failing to evaluate all the
evidence for all
potential claims"in violation of Robersonv. Principi, 251 F.3d1378, 1384 (
Fed. Cir. 2001), because
the Board did not adjudicate his claims for increased disability ratings
for his service-connected
cervicalandlumbarspine disabilities. Appellant's Br. at 13. Specifically,
he contends that"[i]f there
was evidence in the record sufficient to substantiate a claim for increase,
the Board was required to
6
adjudicate it at that time." Id. at 14. However, a review of the Board
decision demonstrates that this
argument is without merit.
In Roberson, the U.S. Court of Appeals for the Federal Circuit held that, "
in order to develop
a claim 'to its optimum' as mandated by Hodge[ v. West, 155 F.3d 1356,
1362 (Fed. Cir. 1998)], the
VA must determine all potential claims raised by the evidence, applying
all relevant laws and
regulations," regardless of the specific label attached to the claim. 251
F.3d at 1384. Here, the
Board considered and denied Mr. Suggs's claims for benefits for
disabilities of the upper and lower
extremities because the Board determined that these conditions were merely
symptoms of his
service-connectedcervicalandlumbarspinedisabilitiesand,therefore,werenot
separatedisabilities
capable of service connection on a direct or secondary basis. The Board
also construed the October
2008 VA medical examination as claims for increased disability ratings for
his service-connected
cervical and lumbar spine disabilities and referred those claims to the
regional office for further
development and adjudication. Therefore, the Court concludes that,
contrary to Mr. Suggs's
contention, the Board considered and addressed all of the potential claims
that were raised by the
evidence of record. See Roberson, 251 F.3d at 1384.
However, the Court acknowledges that the Board decision on this issue is
not a picture of
clarity. Notably, the Board states:
An October 2008 VA examination report reflects that the examiner opined
that [Mr.
Suggs] had right and left upper extremity and lower extremity impairment
that were
manifestations of his service-connected cervical spine and low back
disabilities. The
Board interprets the report as a claim for higher ratings for his cervical
spine and low
back disabilities. These issues are referred to the [regional office] for
appropriate
action, which must specifically include adjudicating whether separate
compensable
ratings are warranted for [Mr. Suggs]'s left and right upper and lower
extremity
impairment.
R. at 5. Later in its decision, the Board also states:
If [Mr. Suggs] believes that [he] is not being adequatelycompensated for
his cervical
symptoms in his upper extremities, the Board encourages him to file a
claim for
increased compensation benefits for his service-connected cervical spine
disability.
Indeed, VA's Schedule for Rating Disabilities provides that separate
ratings are
available for neurological manifestations due to intervertebral disc
syndrome.
7
R. at 11-12 (citing 38 C.F.R. §.4.71a, Diagnostic Code 5243). It is
difficult to reconcile these
seemingly inconsistent statements. On the one hand, the Board stated that
it was referring Mr.
Suggs's claims for increased disability ratings for his cervical and
lumbar spine conditions to the
regional office; on the other hand, the Board encouraged Mr. Suggs to file
a new claim for an
increased disability rating for his cervical spine disability. To the
extent that the Board's statement
that Mr. Suggs should file a new claim for an increased disability rating
constitutes error, the Court
concludes that it is harmless because the Board referred his claims for
increased disability ratings
for his cervical and lumbar spine disabilities to the regional office and
those claims are still pending
adjudication that could result in the awardofincreased disabilityratings.
See 38 U.S.C. § 7261(b)(2)
(requiring the Court to "take due account of the rule of prejudicial error
"); Conway v. Principi,
353 F.3d 1369, 1374 (Fed. Cir. 2004).
Moreover, the Board specifically instructed the regional office to "
adjudicat[e] whether
separate compensable ratings are warranted for [Mr. Suggs]'s left and
right upper and lower
extremity impairment," while also determining that those disabilities
cannot be service connected
on any basis because they are not separate disabilities. Although
contradictory on its face, the Court
construes this language to mean that the Board is instructing the regional
office to assess whether
Mr. Suggs's service-connected cervical and lumbar spine disabilities
warrant increased disability
ratings due to the manifestations of these disabilities in his upper and
lower extremities, not that the
regional office should reconsider whether the manifestations in his upper
and lower extremities are
separate disabilities capable of separate compensation apart from his
currently service-connected
disabilities. Accordingly, the Court will modify the Board decision to
correct this apparent
inconsistency. See 38 U.S.C. § 7252(a) (empowering the Court to "affirm,
modify, or reverse a
decision of the Board or to remand the matter, as appropriate").
C. Other Arguments
Mr. Suggs next argues that "the Board specificallyerr[ed] when it state[d]
that [his] low back
disability has never been 'identified by a medical professional.'"
Appellant's Br. at 10 (quoting R. at
14). The Court acknowledges that the Board's statement that "[Mr. Suggs]
is not medicallyqualified
to attribute his symptoms to a disability other than his low back
disability, which has never been
identified by a medical professional," is somewhat unclear. R. at 13-14.
However, it appears that
8
the Board is stating that the pain and numbness in Mr. Suggs's lower
extremities have never been
identified as a separate disabilitybya medical professional and that he is
not competent to make such
a diagnosis. This interpretation is consistent with the rest of the Board
decision. Moreover, Mr.
Suggs's argument fails to acknowledge that the Board repeatedly stated
that Mr. Suggs has a
diagnosed lumbar spine disability that is already service connected.
Therefore, to the extent that the
Board's statement in this regard constitutes error, the Court concludes
that it is harmless. See
38 U.S.C. § 7261(b)(2); Conway, 353 F.3d at 1374.
Finally, the Court need not address Mr. Suggs's argument for reversal
because the Court is
affirming the Board decision.
III. CONCLUSION
Upon consideration of the foregoing, the July 29, 2009, Board decision is
MODIFIED to
reflect that the Board referred Mr. Suggs's claims for increased
disability ratings for his service-
connected cervical and lumbar spine disabilities, to include consideration
of whether the symptoms
of pain and numbness in his upper and lower extremities caused by these
disabilities warrant the
award of increased disability ratings for his service-connected
disabilities. The Board decision is
AFFIRMED as modified. The Board will issue the modified decision to Mr.
Suggs and his
representative.
DATED: July 5, 2011
Copies to:
Sean A. Kendall, Esq.
VA General Counsel (027)
9
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