Single Judge Application, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011); FED. R. EVID. 803(7); Evidence Against If Ordinarily Would be Recorded

Excerpt from decision below: "Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made)" ========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 09-4769 JOANN L. VOIGHT, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Joann L. Voight appeals through counsel a September 9, 2009, decision of the Board of Veterans' Appeals (Board) that denied a higher initial disability rating for residuals of a lumbosacral (back) injury. Ms. Voight argues that (1) the Board failed to provide an adequate statement of its reasons or bases for denying an initial disability rating in excess of 20% based upon Deluca v. Brown, 8 Vet.App. 202 (1995) ( finding that an examination that "merely recorded the veteran's range of motion"without considering the functional loss due to pain upon motion was inadequate), (2) the medical examinations relied on by the Board were inadequate for assigning her disability compensation rating, and (3) the Board failed to provide an adequate statement of its reasons or bases for not referring her claim for extraschedular consideration. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's decision will be in part affirmed, and in part set aside and the matter remanded for further adjudication. Ms. Voight's argument that the Board failed to provide an adequate statement of its reasons or bases for denying an initial disability rating in excess of 20% for her back injury based upon DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995) is not supported by the record. Ms. Voight's back condition is currently rated as an injury or disease of the spine and a disability rating is assigned based upon her range of motion. See 38 C.F.R. § 4.71a, Diagnostic Code ( DC) 5237 (2010) (providing a 20% disability rating when forward flexion of the spine is greater than 30 degrees and less than 60 degrees and a 40% rating when forward flexion is 30 degrees or less). To establish a 40% rating under DC 5237 for thoracolumbar spine, the forward flexion must be 30 degrees or less or have favorable ankylosis of the entire thoracolumbar spine. The Board explained that Ms. Voight's 70 to 90 degrees of flexion in her back did not meet the criteria for her currently assigned 20% disability rating under DC 5237, but recognized also that weakened movement, excess fatigability, and pain resulting in additional functional impairment could support a higher disability rating under DeLuca, supra, and 38 C.F.R. §§ 4.40, 4.45. Reviewing the medical evidence from August 2004, the Board found that in the most recent May 2007, VA examination, Ms. Voight had (1) lateral motions of 20 degrees bilaterally with back pain, (2) 70 degrees flexion and 15 degrees of extension with some pain, (3) no significant spasms, and (4) some back pain after 3 repetitions, however, with no loss of motion. Record (R.) at 8; see also R. at 118. The May 2007 VA medical examination report specifically referred to the DeLuca procedure and found no loss of motion. In addition, the May 2007 VA medical examination diagnosed Ms. Voight with herniated disc disease, and the Board considered a higher initial rating under the intervertebral disc syndrome code section. See 38 C.F.R. § 4.71a, DC 5243(2011) (providing a 40% disability rating for incapacitating back episodes lasting at least 4 weeks but less than 6 weeks during the last 12 months). With regard to a higher rating under DC 5243, the Board found Ms. Voight's testimony – that she experienced monthlyincapacitatingbackepisodes lasting from a few hours to four weeks– not credible. Because Ms. Voight sought treatment for her back condition at least once a month and because none of the treatment reports mentioned back flare-ups, the Board determined that the absence of any flareup treatment records outweighed her testimony concerning the frequency and duration of her back episodes. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made); see also 38 C.F.R. § 4.71a, DC 5243 (2011) (requiring 2 incapacitating episodes of 4 to 6 weeks to warrant a 40% disability rating). Based on the record on appeal, the Board's findings that a disability rating higher than 20% for residuals of a back condition under either DC 5237 or DC 5243, with consideration of the DeLuca factors, was not warranted is plausible and not clearly erroneous. See Johnston v. Brown, 10 Vet.App. 80, 84 (1997) (Board's decision regarding the degree of disability under the rating schedule is a finding of fact subject to the "clearly erroneous" standard of review); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A 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 convictionthatamistakehasbeen committed.'"(quoting United States v.U.S. GypsumCo.,333U.S. 364, 395 (1948))). Moreover, the Board considered the May2007 VA examination that specifically mentioned and assessed the DeLuca procedure and found no loss of motion, and Ms. Voight points to no evidence in the record suggesting that anypain associated with her forward flexion movements limited her functionality to 30 degrees or less as required for a 40% disability rating, a rating that requires forward flexion to be limited to 30 degrees or less. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). Overall the Board's finding of a 20% disability rating is understandable and facilitative of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (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"). Similarly, the record of proceedings does not support Ms. Voight's argument that the VA medical examinations are inadequate to evaluate the DeLuca factors because none explicitly state the point at which she experiences pain during movement. Although the more detailed, the better the report, the Board's determination that a report is adequate may be reversed only if it is clearly erroneous. See D'Aries v. Peake, 22 Vet.App. 97, 104 (2008) (Board's determination as to adequacy of medical examination is a question of fact); Gilbert, supra. Here, the 2007 VA medical examination report noted application of the DeLuca factors and that Ms. Voight had forward flexion of 70 degrees well beyond the 30 degrees or less required for a 40% disability rating. Although pain is noted, the report reflects the examiner's observation that there was no loss of motion due to pain, and, as noted above, Ms. Voight points to no evidence in the record indicating that her forward flexion movements were limited by pain to a functionality of 30 degrees or less as required for a 40% 3 disability rating. In sum, she fails to demonstrate that the Board's finding that the medical examination reports in the record were adequate or that the Board's reliance on these reports was clearly erroneous. See Hilkert, supra.; see also D'Aries, 22 Vet.App. at 103-104 (holding that a medical opinion is adequate where it is based upon the veteran's medical history, examinations, and also describes the disability in sufficient detail, and holding that whether a medical opinion is adequate is a finding of fact, which the Court reviews for clear error); Gilbert, supra. On the other hand, Ms. Voight's argument that the Board failed to provide an adequate statement of reasons or bases for the failure to refer her claim for extraschedular consideration is supported by the record. The Board denied the referral of an extraschedular rating without addressing the evidence of record indicating interference with employment. Ms. Voight testified in November 2007 that she (1) needed medication to perform her job, (2) frequently had to move around at work because of her back, and (3) went to work bent over and used an ice pack at work to control her back pain. In addition, Ms. Voight's mother submitted a letter stating that her daughter went to work with back pain and often she was unable to stand erect. Although the Board determined that referral for an extraschedular rating was not warranted because the schedular rating was adequate, such a finding still must be supported by an adequate statement of reasons or bases that explains whythe schedular rating is adequate. See Thun v. Peake, 22 Vet.App. 111, 115 (2009). This necessarilyincludes a discussion and assessment of whether a disability or its symptomatology is so severe that it prevents the veteran from working, and an explanation as to whether and why such interference with work is of the same degree and nature as contemplated by the schedular rating. See Barringer v. Peake, 22 Vet.App. 242, 244 (2008) ("As with all its decisions, the Board must provideanadequatestatementofreasons orbasesforthisdetermination"); Thompsonv.Gober, 14 Vet.App. 187, 188 (2000) (Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"). On remand, Ms. Voight may present, and the Board must consider any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U. S.C. § 7112. 4 Upon consideration of the foregoing, that part of the September 9, 2009, decision addressing extraschedular consideration is SET ASIDE, and the matter is REMANDED for further adjudication, and the remainder of the decision is AFFIRMED. DATED: October 14, 2011 Copies to: Michael A. Leonard, Esq. VA General Counsel (027) 5