Friday, December 23, 2011

Single Judge Application, Flare-ups and Functional Loss; Mitchell v. Shineski, 25 Vet.App. 32, 44 (2011);

Excerpt from decision below: "A functional loss results when ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance" is inhibited. 38 C.F.R. § 4.40(2011). When assessing a veteran's level of disability, the examiner must "express an opinion on whether pain could significantly limit functional ability during flare-ups." DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion. Id. In Mitchell v. Shineski, the Court reinforced the principle that: [when an] examiner failed to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and it should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary. 25 Vet.App. 32, 44 (2011) (holding that "pain alone does not constitute a functional loss under VA regulations" and was not a sufficient basis for a higher disability rating under diagnostic codes that evaluate limitation of range of motion). In this case, the examiner concluded: Except as noted in the history and examination above, there is no change in active or passive range of motion . . . [d]uring repeat motion testing and no additional losses of range of motion of the involved joints or spine due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. R. at 206. The appellant asserts that the examiner, in so concluding, did not explain his likely limitations caused by pain during flareups. App. Br. at 19. The Court agrees. See R. at 203 ("Flares of increased pain can last minutes to hours and are variable in frequency."). Although painful motion is not limited motion for purposes of DC 5260, pain during flare-ups could produce a functional loss that entitles the veteran to additional compensation. See Mitchell, supra. Although the examiner tersely states that the appellant has no additional loss of range of motion due to flare-ups, the examiner wholly fails to "express an opinion on whether pain could significantly limit functional ability during flare-ups." DeLuca v. Brown, 8 Vet.App. at 206. Accordingly, the Board's reliance on this inadequate medical examination was clearly erroneous. See Nolen, supra. ======================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0838 MICHAEL SCOTT OSTER, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, Michael Scott Oster, appeals through counsel two January 8, 2010, Board of Veterans' Appeals (Board) decisions. One Board decision denied entitlement to increased disability ratings for lumbosacral strain, currently rated at 20% disabling, and a right knee disorder, currently rated at 10% disabling; denied entitlement to service connection for a cervical disk disorder and for a left peroneal nerve palsy, both as secondary to service- connected lumbosacral strain; and denied entitlement to service connection for a left knee disorder as secondaryto service-connecteddisorders. Record (R.) at 19-49. The other Board decision denied entitlement to a temporary total disability rating for convalescence pursuant to 38 C.F.R. § 4.30 (2008) based on L4-L5 laminectomy/discectomy1 with hospitalization from November 30, 2007, through December 2, 2007, and convalescence thereafter. R. at 3-17. The Board also remanded the appellant's claim of entitlement to service connection for a psychiatric disorder. The Court does not have jurisdiction over this remanded claim and will not address it further. See Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir. 2005). Laminectomy is the "excision of the posterior arch of a vertebra." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1003 (32d ed. 2012) [hereinafter DORLAND'S]. Discectomy (also called "Diskectomy") is the "excision of an intervertebral disk." DORLAND'S at 547. 1 The appellant and Secretary both filed briefs, and the appellant filed a reply brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the Board's decision. A single judge may conduct this review because the outcome in this case is controlled bythe Court's precedents and "is not reasonablydebatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate in part and affirm in part the Board's January 2010 decisions. I. FACTS Mr. Oster served on active duty in the U.S. Navy from June 1985 to April 1988. R. at 1112. While in service, Mr. Oster injured his back after hitting it against a ship mooring. R. at 30. Upon discharge, Mr. Oster reported: "I've had trouble with my right leg and lately with my left leg." R. at 1255. A discharge summaryof Mr. Oster's service medical records also indicates that he had focal tendinitis, tibial tuberosity, and patellar strain of the right knee. R. at 1254. In January 1993, Mr. Oster filed a claim of entitlement to service connection for back and right knee injuries. R. at 1665-69. In April 1993, following a VA medical examination of Mr. Oster's back, a VA regional office (RO) granted entitlement to service connection for chronic strain ofthethoracicandlumbarspine,ratedat10%disabling,but deniedentitlementto serviceconnection for a right knee disability. R. at 1656, 1658. Mr. Oster filed a Notice of Disagreement (NOD) with the rating decision in May 1993, asserting that his "chronic strain of the thoracic and lumbar spine is more severe than the ten percent rating" indicates and that he is entitled to service connection for his right knee disability. R. at 1636. VA provided Mr. Oster with a Statement of the Case (SOC) in September 1993 ( R. at 1632-35) and Mr. Oster filed a timely Substantive Appeal to the Board, appealing the RO's disposition of his back condition and right knee condition claims. R. at 1576-77. In November 1993, x-rays were taken of Mr. Oster's lumbar spine. The first x-ray, taken at 2:15 p.m., showed no evidence of spondylosis or spondylolysthesis, but noted that spondylolysis 2 should be ruled out.2 R. at 970. The second x-ray, taken at 2:44 p.m., presumably as a result of the notation on the first x-ray indicating that spondylolysis should be ruled out, showed questionable unilateral spondylolysis on the right at L-5. R. at 968. In October 1994, the RO issued a rating decision granting entitlement to service connection for a right knee condition, rated at 10% disabling. R. at 1518-21. The RO also denied an increased rating for Mr. Oster's chronic thoracolumbar strain, rated at 10% disabling. Id. Mr. Oster appealed the RO's denial of an increased rating for his back condition to the Board, and the Board also denied entitlement to an increased rating. R. at 1333-41. Mr. Oster did not appeal that decision. In March 2004, Mr. Oster filed a claim for an increased rating of his low back condition. R. at 1327-30. He underwent a VA medical examination in May 2004. R. at 974- 76. He filed an increased rating claim for his right knee condition in August 2004 (R. at 1179) and underwent an October 2004 VA joints examination (R. at 1157-60). In December 2004, the RO deniedentitlement to serviceconnection for a left knee condition, cervical spine condition, and peroneal nerve palsy of the left leg and denied entitlement to increased ratings for a right knee condition and low back strain. R. at 1108-20. Mr. Oster filed an NOD in January 2005. R. at 1080-81. Thereafter, Mr. Oster underwent a December 2005 VA examination for peroneal nervepalsy (R. at 826-28), a September 2006 VA examination of the right knee (R. at 747-48), and a February 2007 VA examination of the joints (R. at 684-87). He appealed the December 2004 VA decision to the Board (R. at 770-91), and in July 2007 he testified before the Board (R. at 600-21). In December2007,theBoardremandedMr.Oster's claimsforfurtherdevelopment, specificallyforVA to obtain Social Security Administration (SSA) records; for VA to obtain private medical records; for VA to provide an examination of his knees, spine, and left leg peroneal nerve; and for VA to undertake any further necessary development. R. at 565-72. In June 2008, Mr. Oster underwent a VA examination of his low back, right knee, cervical Spondylolysis is defined as "dissolution of a vertebra; a condition marked by platyspondylia, aplasia of the vertebral arch, and separation of the pars interarticularis." DORLAND'S at 1754. Spondylosis is defined as "1. ankylosis of a vertebral joint. 2. degenerative spinal changes due to osteoarthritis ." Id. Spondylolisthesis is defined as "forward displacement (olisthy) of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis." Id. 2 3 spine, and peroneal left leg nerve palsy, the results of which are discussed more thoroughly in the Court's analysis. R. at 201-207. In January2010, the Board issued the two decisions here on appeal. R. at 3-17, 19-49. The Court will address the appellant's specific contentions below. II. ANALYSIS A. Lumbosacral Strain The appellant first argues that the Board relied on an inadequate VA medical opinion and provided an inadequate statement of reasons or bases when it denied an increased disability rating for his service-connected lumbosacral strain. Appellant's (App.) Brief (Br .) at 9-12. Specifically, the appellant asserts that the Board erroneously relied upon a 2008 VA examination in which the examiner concluded that the appellant's current low back condition, which required an L4-L5 laminectomy/discectomyin 2007, is a new condition unrelatedtohis service- connectedlumbosacral strain. App. Br. at 9-10. Pursuant to 38 U.S.C. § 5103A, the Secretary's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination. 38 U.S.C. § 5103A; see Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see also Green v. Derwinski, 1 Vet.App. 121, 124 (1991). An examination "is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl, 21 Vet.App. at 123 (quoting Ardison v. Brown, 6 Vet.App. 405, 407–08 (1994)); Green, 1 Vet.App. at 124. It is amedicalexaminer's responsibilityto provideawell-supportedopinion so thattheBoard may carry out its duty to weigh the evidence of record. Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet.App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As provided byVA regulations, "accurate and fullydescriptive medicalexaminations arerequired, with emphasis uponthe limitation of activityimposed bythe disabling condition," 38 C.F.R. § 4.1 (2011), and "[i]f a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate 4 for evaluation purposes," 38 C.F.R. § 4.2 (2011). See Stegall v. West, 11 Vet.App. 268, 270–71 (1998) (remanding matter where VA examination was inadequate under § 4.2); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical examination frustrates judicial review). An examination report may be inadequate if it fails to discuss something that is necessary. See 38 C.F.R. § 4.2. Further, the Court has held that "[a]n opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 5 Vet.App. 458, 461 ( 1993). The Board's determination of whether the Secretary has fulfilled his duty to assist generally is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (when applying the "clearly erroneous" standard, if, after reviewing the record in its entirety, the Board's finding of fact is supported by a plausible basis, "'the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.'" (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)). Moreover, the Board must provide a statement of reasons or bases adequate to enable a claimant 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 ); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert, 1 Vet.App. at 56–57. To comply with this requirement, the Board must analyze the credibilityand 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); Gabrielson v. Brown, 7 Vet.App. 36, 39–40 (1994); Gilbert, supra. The Court agrees with the appellant's arguments that the examiner relied on an inaccurate factual premise and failed to discuss potentially important medical evidence. The examiner stated: [M]edical records show that he [the appellant] had acute lumbar strain episodes in the past with negative imaging by x-ray in 1992 and 1994 and it was not until more recently in 2004 that he was found to have anycomplication of his lumbar spine then undergoing left L4-L5 diskectomy and excision with laminotomy in 2007. His degenerative disk disease would not have been caused by resolving acute lumbar strain but rather, again, more likely associated with his morbid obesity and long sitting as a truck driver. Therefore, his diagnosis for his lumbar spine also is acute 5 lumbar strains, resolving, with degenerative disk disease secondary to aging accelerated by chronic sitting and morbid obesity. R. at 207. As the appellant notes, the examiner failed to discuss that a November 1993 x-ray examination showed "questionable spondylolysis on the right at L/5." R. at 968. This medical record conflicts with the examiner's assessment and, at the very least, warranted discussion by the examiner. See Reonal and Stegall, both supra. Accordingly, the Court holds that this portion of the 2008 VA medical examination is inadequate. AlthoughtheBoardnotedthattheexaminerfailedto discuss " possibleconflictingevidence." the Board nevertheless reasoned that the examination was highly probative. After summarizing the medical opinion, the Board stated: The Board notes some possibleconflictingevidencein the record, such as conflicting 1993 X-rays of the lumbar spine, with cone-down-view X-rays of the lumbar spine in November 1993 provided an assessment of "[q]uestionable unilateral spondylolysis on the right at [L-5]," but a contrasting interpretation the same day of oblique-view x-rays of the lumbar spine produced a finding of "no evidence of spondylosis or evidence of spondylo[li]sthesis when compared with films [ ín April 1993]," and that examiner assessing "normal oblique views of the lumbar spine." However, the bulk of the examination reports have generally not presented findings orconclusionsthatcontradictedorprecludedthefindingsandconclusionsoftheJune 2008 VA examiner. R. at 32. It appears that, in its strained effort to explain this conflicting evidence, the Board has created a false implication that, on re-testing, the x-rays produced negative results, i.e., evidence that there was no spondylolysis. The record, however, reveals that the second set of x-rays taken to rule out an additional condition produced positive results, rendering false the 2008 examiner's statement that complications were not found until 2004. R. at 207. The Court therefore holds that the Board erred when it relied upon a medical examination inadequate for purposes of rating the appellant lumbar spine disability, that the Board failed to provide an adequate statement of reasons and bases for its rejection of relevant x-ray evidence, and that these deficiencies have prejudiced the appellant. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S.Ct. 1696, 1705 (2009) (noting that this Court is required to "take due account of the rule of prejudicial error"); see also Nolen and Caluza, both supra. Consequently, the Court will vacate that portion of the Board's decision denying appellant's claim for an increased evaluation for 6 lumbosacral strain, currentlyrated at 20% disabling, and remand the matter for furtherdevelopment. B. Secondary Service Connection for Left Knee Condition, Cervical Spine Disorder, and Peroneal Nerve Palsy The appellant also argues that the 2008 VA examination was inadequate for purposes of evaluating his claims of entitlement to service connection for left knee disorder, cervical spine disorder, and peroneal nerve palsy, all as secondary to service-connected lumbosacral strain. App. Br. at 12-14. Specifically, he argues that the 2008 medical opinion erroneouslyconcluded that these conditions were caused by the appellant's degenerative disc disease and not his service-connected lumbar strain, and the examiner provided an inadequate rationale for his conclusion. App. Br. at 13. Secondaryservice connection is awarded for a "disability which is proximatelydue to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) ( 2011). In this case, the 2008 VA examiner was asked to render an opinion on whether the appellant's left knee, cervical spine, and peroneal nerve palsy disorders were "caused by or made worse by service- connected low back disability." R. at 201-02. Following physical examination, the examiner: ( 1) attributed the appellant's cervical spine strain to his obesity; (2) opined that his " peripheral nerve injury [ ] is not associated with a spinal canal stenosis or foraminal stenosis;" and (3) diagnosed his left knee disability as iliotibial (IT) band syndrome resulting from his obesity, inactivity, and career as a truck driver. R. at 206-07. The examiner then opined that, because the appellant's lower back condition is diagnosed as "acute lumbar strains, resolving, with degenerative disk disease secondary to aging accelerated by chronic sitting and morbid obesity . . . . the above complaints of left knee, peroneal nerve palsy left side and cervical spine are not made worse by a service- connected low back disability on a not at least as likely as not basis." R. at 207. The Board's decision relied heavily on this examination to deny entitlement to secondaryservice connection for these claims. See R. at 45- 47. Although the examiner notes alternative causes of the appellant's disabilities, including his weight and occupation, the examiner's conclusion that these conditions are not caused by or made worse by the appellant's lumbar spine strain rests on the rationale that the appellant's lumbar spine strains resolved, and that his current back disability is non-service- connected degenerative disk 7 disease. R. at 207. As discussed earlier, the examiner's rationale concerning the appellant's back condition was inadequate. Therefore, the examiner's opinion regardingwhetherthese conditions are caused by or made worse by his service-connected lumbar spine condition is also inadequate. Because the Board supports its determination largely relying on this 2008 VA examination, the Board's decision denying these claims is clearly erroneous. See Nolen and Gilbert, both supra. Accordingly, the Court will vacate the Board's decision and remand these matters for further development. C. Direct Service Connection of the Left Knee The appellant next argues that the 2008 examination was inadequate with regard to his claim of entitlement to direct service connection for left knee disability, because the examiner (1) ignored the appellant's post-service medical records showing complaints of knee pain beginning in service, and (2) ignored medical evidence showing degenerative changes in the left knee. App. Br. at 14-15. Contrary to the first of these assertions, it appears that the examiner considered the appellant's contention that his left knee pain began in service. R. at 203 (noting that "he is fairly adamant that the onset was 'at the same time in service, I just did not complain until I got out.'"). However, the Court agrees with the appellant that the examiner failed to account for degenerative changes found in the medical records. First, the examiner incorrectly stated that the appellant's medical records do not show degenerative changes until May2006. R. at 203. However, a March 2004 radiologyreport shows "degenerative changes of the left knee." R. at 780. Moreover, the examiner failed to explain how these degenerative changes relate to the examiner's diagnosis of IT band syndrome. Although "[a] medicalexaminer need notdiscuss allevidencefavorableto anappellant's claimwhenrendering an opinion," the examination must contain sufficient detail, must be accurate, and must be fully descriptive. Roberson v. Shinseki, 22 Vet.App. 358, 366 (2009), aff'd, 607 F.3d 809 (Fed. Cir. 2010); see 38 C.F.R. §§ 4.1 and 4.2. Notwithstanding the VA examination's shortcomings, the appellant has failed to persuade the Court that such an error has prejudiced his claim. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ("An appellant bears the burden of persuasion on appeals to this Court."), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet.App. 166, 169 (1997) ("[T]he appellant . . . always bears the burden of persuasion on appeals to this Court."). In this case, 8 the Board determined that, although the appellant asserts that he developed a left knee disability in service, the record does not show in-service treatment or treatment for years after. R. at 46. In short, the Board denied the claim because the evidence did not show an in-service disability; the Board did not rely on the 2008 VA examination's nexus opinion when considering direct service connection for the left knee. Therefore, anyinadequacyin that VA examination did not prejudice the appellant. See Sanders, supra. D. Entitlement to an Increased Evaluation for Right Knee Disorder The appellant argues that the Board failed to provide an adequate statement of reasons or bases for concluding that he does not have additional functional loss in his right knee due to pain, weakness, incoordination, fatigue, or loss of endurance caused by flare- ups. App. Br. at 18-19. Specifically, the appellant argues that the Board inappropriately relied on the 2008 examination report that "contained no assessment of likely limitation of movement caused by pain during flare- ups." App. Br. at 19. The Board's determinations regarding the degree of impairment of a disability, for purposes of rating, are findings of fact, reviewed under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Francisco v. Brown, 7 Vet.App. 55, 57- 58 (1994). In this case the Board did rely, in part, on the 2008 VA examination to determine that the appellant suffers from "some limited pain, a slight limitation of motion . . . , and dysfunction including as associated with iliotibial band syndrome." R. at 37. The Board found that the appellant's disability was most appropriately rated based on limitation of flexion under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. R. at 37. This diagnostic code provides for a 10% disability rating where flexion is limited to 45 degrees. The Board explained that, based on the results of the June 2008, February 2007, and October 2004 VA examinations, and a September 2006 magnetic resonance imaging (MRI), the appellant did not suffer any further functional loss due to "pain, weakness,incoordination, fatigue,orloss ofendurance,orbyflare- upsassociatedwiththeright knee present to any significantly disabling degree." Id. Therefore, the Board continued the appellant's 10%ratingbecausehis rightkneedisability"ismost closelyapproximated asequivalentto limitation of flexion to not less than 45 degrees." R. at 37. The appellant's centralcontention is that the 2008 VA examination inadequatelyassessed his functional limitations. In particular, the appellant argues that the examiner did not adequately 9 consider or assess the likely impact his pain on flare-ups would have on his functional ability. App. Br. at 18-19. A functional loss results when ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance" is inhibited. 38 C.F.R. § 4.40(2011). When assessing a veteran's level of disability, the examiner must "express an opinion on whether pain could significantly limit functional ability during flare-ups." DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion. Id. In Mitchell v. Shineski, the Court reinforced the principle that: [when an] examiner failed to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and it should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary. 25 Vet.App. 32, 44 (2011) (holding that "pain alone does not constitute a functional loss under VA regulations" and was not a sufficient basis for a higher disability rating under diagnostic codes that evaluate limitation of range of motion). In this case, the examiner concluded: Except as noted in the history and examination above, there is no change in active or passive range of motion . . . [d]uring repeat motion testing and no additional losses of range of motion of the involved joints or spine due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. R. at 206. The appellant asserts that the examiner, in so concluding, did not explain his likely limitations caused by pain during flareups. App. Br. at 19. The Court agrees. See R. at 203 ("Flares of increased pain can last minutes to hours and are variable in frequency."). Although painful motion is not limited motion for purposes of DC 5260, pain during flare-ups could produce a functional loss that entitles the veteran to additional compensation. See Mitchell, supra. Although the examiner tersely states that the appellant has no additional loss of range of motion due to flare-ups, the examiner wholly fails to "express an opinion on whether pain could significantly limit functional ability during flare-ups." DeLuca v. Brown, 8 Vet.App. at 206. Accordingly, the Board's reliance on this inadequate medical examination was clearly erroneous. See Nolen, supra. 10 Moreover, the Board does not cite to any evidence in the record providing an adequate assessment of the appellant's functional ability during flare-ups. The October 2004 and February 2007 VA medical examinations, relied upon by the Board, merely note that the appellant suffers from flare-ups without providing the opinion required by DeLuca. See R. at 1157 (noting flare-ups during cold and rainy weather); R. at 685 (noting that flare-ups occur 3 or 4 times per week, last a variable amount of time, andresolvewithoutmedicaltreatment). Becausethe appellant has not been afforded a medical examination that provides the required opinion regarding flareups, and because this has prejudiced his claim, the Court will remand the matter for further development. See Sanders, supra. E. Entitlement to Temporary Total Disability Rating for Convalescence Lastly, the appellant argues that his request for temporary total disability for convalescence after his 2007 L4-L5 laminectomy/discectomy surgery is "inextricably intertwined" with the other issues in this case; specifically, that this surgery was related to his service-connected lumbosacral strain. App. Br. at 21-22. Therefore, the appellant argues, this issue can only be resolved after the proper resolution of his lumbosacral strain claim. App. Br. at 22. TheBoard's decisiondeniedentitlementto atemporarytotal disabilityratingunder38C.F.R. § 4.30 solely on the grounds that the Board determined that the evidence showed that the appellant's service- connectedlumbosacralstrainhadresolvedandwasunrelatedtothelumbardegenerativ disease condition for which he underwent surgery. R. at 9. However, as discussed previously, in determining that the appellant's current back condition is not related to his service-connected back condition, the Board relied on an inadequate medical examination. Because the Board's rationale with regard to the current claim rests upon inadequate evidence, the Board has clearly erred in its determination that the appellant was not entitled to a temporary total disability rating for convalescence and the Court will remand the matter. See Nolen, supra. F. Remanded Matters The Court has remanded the appellant's claims for: (1) entitlement to an increased evaluation for lumbosacral strain; (2) entitlement to secondary service connection for a left knee condition, cervical spine disorder, and peroneal nerve palsy; (3) entitlement to an increased evaluation for a right knee disorder; and (4) entitlement to a temporary total disability rating for the convalescent 11 period following his laminectomy/discectomy surgery. On remand, the VA must provide an examination for these conditions that complies with VA's duty to assist. The appellant is free to submit additional evidence and raise any remaining arguments to the Board; the Board is required to consider them as it provides expeditious treatment of this matter. See 38 U.S.C. § 7112; see also Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order). Other arguments regarding the probative value of the May 2004 and July 2004 examinations are best addressed on remand. See Best v. Principi, 15 Vet. App. 18, 20 (2001) (per curiam) ("A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at readjudication, and, of course, before this Court in an appeal, should the Board rule against him."). III. CONCLUSION Based on the foregoing analysis and a review of the record on appeal, those portions of the Board's January 8, 2010, decisions denying entitlement to: an increased evaluation for lumbosacral strain; secondary serviceconnection for cervical disk disorder, left knee disorder,and peroneal nerve palsy; an increased evaluation for a right knee disorder; and temporary total disability rating for convalescence are VACATED and REMANDED forfurtherexpeditious proceedings consistent with this decision. The Board's remaining decisions are AFFIRMED. DATED: December 12, 2011 Copies to: Sandra W. Wischow, Esq. VA General Counsel (027) 12

Single Judge Application, Bartlett v. Shinseki, 24 Vet.App. 328 (2011); Clarified Definition of "hospital care"under 38 U.S.C. 1115

Excerpt from decision below: "During the pendency of this appeal, the Court decided Bartlett v. Shinseki, 24 Vet.App. 328 (2011), which further clarified the definition of "hospital care"under 38 U.S.C. § 1115. 24 Vet.App. at 331-33. The Court held that "hospital care" is not limited to medical services and includes services unique to the hospitalization of patients. Id. at 332. Moreover, the Court stated that the term "hospital care" "depend[s] on a variety of factors, including the nature of services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms." Id. at 333. Here, the Board found that Mr. Breedlove's injury did not occur within the scope of "hospital care" because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, "hospital care" includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett. ============================================================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 08-3059 BRENDA BREEDLOVE, 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: Brenda Breedlove, surviving spouse of Charles L. Breedlove, appeals through counsel a September 9, 2008, decision of the Board of Veterans' Appeals (Board) that denied accrued benefits for injuries Mr. Breedlove sustained from a door malfunction at a VA hospital. Mrs. Breedlove argues that reversal is required because the Board erred by (1) applying the incorrect legal standard to Mr. Breedlove's claim, (2) finding that Mr. Breedlove's injuries were the result of an intervening cause, and (3) providing an inadequate statement of reasons or bases for its reliance on two VA General Counsel Precedent Opinions and its rejection of Mr. Breedlove's lay testimony. The Secretary disputes these contentions. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Board's decision will be set aside and the matter remanded for further adjudication. During the pendency of this appeal, the Court decided Bartlett v. Shinseki, 24 Vet.App. 328 (2011), which further clarified the definition of "hospital care"under 38 U.S.C. § 1115. 24 Vet.App. at 331-33. The Court held that "hospital care" is not limited to medical services and includes services unique to the hospitalization of patients. Id. at 332. Moreover, the Court stated that the term "hospital care" "depend[s] on a variety of factors, including the nature of services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms." Id. at 333. Here, the Board found that Mr. Breedlove's injury did not occur within the scope of "hospital care" because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, "hospital care" includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett. See 38 U.S.C. § 7252(a) (authorizing Court to remand as appropriate); Maggitt v. West, 2002 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if the Court has jurisdiction over a claim, issues presented for the first time on appeal may be remanded to the Board for further development); Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991) (remanding case to the Board without vacating or setting aside Board decision on appeal). On remand, Mrs. Breedlove 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. For the reasons stated above, the September 9, 2008, decision of the Board is SET ASIDE and the matter REMANDED for further adjudication. DATED: December 16, 2011 Copies to: Michael D. Maloney, Esq. VA General Counsel (027) 2