Wednesday, September 19, 2012

Single Judge Application, Mitchell v. Shinseki, 25 Vet.App. 32 (2011); 38 C.F.R. 4.40, 4.45; Pain Functional Loss

Excerpt from decision below: "In addition, VA is required to account for loss of motion due to pain on use when evaluating the functional loss of the musculoskeletal system and the joints. Mitchell v. Shinseki, 25 Vet.App. 32 (2011); DeLuca, supra; 38 C.F.R. §§ 4.40 (2012), 4.45 (2012)." "The appellant argues, in part, that the 20% disability rating assigned by the Board "does not consider 'function[al] loss' due to pain on movement as required by 38 C.F.R. [§] 4.40." Appellant's Informal Br. at 1. As noted above, the Board stated that the General Formula for Diseases and Injuries of the Spine applies objective criteria that "factor in functional loss due to pain, stiffness, and radiation," and that "[a]s a result, 38 C.F.R. §§ 4.40 and 4.45, as interpreted by DeLuca [ ], are not for application." R. at 9 (citing only 38 C.F.R. § 4.71a). The Secretary's argument tracks the Board's language. Sec'y Br. at 9. The part of the rating schedule cited by the Board and the Secretary begins with the statement, "With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease . . ." and is followed by the specific criteria required for the various disability ratings that are available. 38 C.F.R. § 4.71a (2012)(governing diagnostic codes 5235-5243). However, the Court's prior decisions do not support the Board's and the Secretary's position that §§ 4.40 and 4.45, as interpreted by DeLuca (and more recently by Mitchell), are never applicable in the context of these diagnostic codes. See Cullen v. Shinseki, 24 Vet.App. 74, 85 (2010) ("When rating disabilities of joints, including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue." (citing DeLuca) (emphasis added))1; but see Johnston v. Brown, 10 Vet.App. 80, 84-85 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue, 5215). Therefore, because the appellant was not receiving the maximum disability rating for limitation of motion under diagnostic 1. In Cullen, the Secretary conceded that remand was required based on the Board's inadequate statement of reasons or bases concerning the application of DeLuca to Mr. Cullen's thoracic spine disability. Cullen, 24 Vet.App. at 84-85. The Court notes, for informational purposes only, that in an unrelated appeal adjudicated by a single judge, the Secretary conceded remand based on the Board's inadequate discussion of §§ 4.40 and 4.45 in the context of diagnostic code 5242. Dickenson v. Shinseki, No. 10-690, 2011 WL 2694690, at *4 (Vet. App. July 13, 2011); see also Bohn v. Peake, No. 06-1333, 2008 WL 563390, at *2 (Vet. App. February 19, 2008) (noting that the Secretary conceded that DeLuca applied to diagnostic codes 5235-5243). 4 code 5242, the Board was obligated to discuss the issue of functional loss and its failure to do so renders its statement of reasons or bases inadequate." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1646 VERTIE H. BALLARD, 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, Vertie H. Ballard, appeals pro se a January 28, 2011, Board of Veterans' Appeals (Board) decision that denied her claim of entitlement to an increased disabilityratingfor post-operative degenerative disc disease (DDD) of the thoracolumbar spine with lumbar radiculopathy (low back disorder), currently rated as 20% disabling. Record (R.) at 3-16. The Board also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU), and that issue is not before the Court at this time. See Breeden v. Principi, 17 Vet.App. 475 (2004). Ms. Ballard filed an informal brief and the Secretary filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate the Board's decision. I. BACKGROUND Ms. Ballard served on active duty in the U.S. Army from August 1965 to December 1966. R. at 3. In November 2006, she submitted a claim for entitlement to service connection for a low back disorder. Secretary's (Sec'y) Brief (Br.) at 2 (citing R. at 726, which is not in the record of proceedings before the Court). In January 2008, a VA regional office (RO) granted entitlement to service connection for a low back disorder and granted a 20% disability rating, effective November 2006. R. at 221-23. In February 2008, Ms. Ballard requested an increased disability rating. In April 2008, VA provided a medical examination. R. at 182-91. Ms. Ballard did not report any flare-ups in pain, but she did state that her condition was getting worse. R. at 183. She noted problems with lifting, pushing, and bending at work prior to her retirement and said that she could only do chores for a few minutes at a time. Id. She also reported that she had a history of fatigue, decreased motion (due to pain with bending over), stiffness, spasms, and pain. R. at 184. On examination, the examiner noted that Ms. Ballard exhibited spasms and tenderness. R. at 185. The examiner found Ms. Ballard's active range of motion to be from 0 to 35 degrees of flexion with pain beginning at 35 degrees and no additional limitation of motion on repetitive use and from 0 to 15 degrees of extension with pain beginning at 15 degrees and no limitation of motion on repetitive use. R. at 188. The examiner diagnosed her with "DDD/DJD [(degenerative joint disease)] of lumbar spine [with] radiculopathy of the bilateral lower extremities" and stated, "Please refer to the history for veteran's description of effects on [her] occupation and daily activities." R. at 190. In August 2008, the RO issued a rating decision that continued the 20% disability rating and denied TDIU. R. at 9. The RO also granted service connection for sensory deficit of each lower extremity for the neurological manifestations of the disorder and assigned a separate 10% disability rating for each. Id. In the decision here on appeal, the Board found that Ms. Ballard's low back disability was not manifested by ankylosis, incapacitating episodes, or range of motion on forward flexion of 0 to 30 degrees or less. R. at 4, 8 (discussing the April 2008 VA examination report results). In reaching its decision, the Board noted that the General [Rating] Formula [For Diseases and Injuries of the Spine] applies strictly objective criteria which specifically factor in functional loss due to pain, stiffness, and radiation. As a result, 38 C.F.R. §§ 4.40 and 4.45, as interpreted by DeLuca v. Brown, 8 Vet.App. 202 (1995), are not for application. R. at 9 (citing 38 C.F.R. § 4.71a). Therefore, the Board concluded, Ms. Ballard was not entitled to a disability rating in excess of 20% under 38 C.F.R. § 4.71a, Diagnostic Code 5242. On appeal, Ms. Ballard argues that it is not clear how the Board decided to rate her back disability at a 20% disability rating. She argues that the April 2008 VA examination report found 2 that her back condition had gotten worse and that she was forced to quit her job because of it in 2005. She argues that the 20% rating does not contemplate her functional loss or consider the side effects of her medication or the fact that she is receiving Social Security disability based on her VA medical records. II. ANALYSIS Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104( a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In addition, 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 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); Gilbert, 1 Vet.App. at 57. Pursuant to 38 C.F.R. § 4.71a, DC 5242, the following ratings are warranted for a low back disorder such as the appellant's in this case: [F]orward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine . . . . . . . . . . . . . . . . . . . . . . . . . . 40[%] ... Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; . . . or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; . . . or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20[%] 3 In addition, VA is required to account for loss of motion due to pain on use when evaluating the functional loss of the musculoskeletal system and the joints. Mitchell v. Shinseki, 25 Vet.App. 32 (2011); DeLuca, supra; 38 C.F.R. §§ 4.40 (2012), 4.45 (2012). The appellant argues, in part, that the 20% disability rating assigned by the Board "does not consider 'function[al] loss' due to pain on movement as required by 38 C.F. R. [§] 4.40." Appellant's Informal Br. at 1. As noted above, the Board stated that the General Formula for Diseases and Injuries of the Spine applies objective criteria that "factor in functional loss due to pain, stiffness, and radiation," and that "[a]s a result, 38 C.F.R. §§ 4.40 and 4.45, as interpreted by DeLuca [ ], are not for application." R. at 9 (citing only 38 C.F.R. § 4.71a). The Secretary's argument tracks the Board's language. Sec'y Br. at 9. The part of the rating schedule cited by the Board and the Secretary begins with the statement, "With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease . . ." and is followed by the specific criteria required for the various disability ratings that are available. 38 C.F.R. § 4.71a (2012) (governing diagnostic codes 5235-5243). However, the Court's prior decisions do not support the Board's and the Secretary's position that §§ 4.40 and 4.45, as interpreted by DeLuca (and more recently by Mitchell), are never applicable in the context of these diagnostic codes. See Cullen v. Shinseki, 24 Vet.App. 74, 85 (2010) ("When rating disabilities of joints, including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue." (citing DeLuca) (emphasis added))1 ; but see Johnston v. Brown, 10 Vet.App. 80, 84-85 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue, 5215). Therefore, because the appellant was not receiving the maximum disability rating for limitation of motion under diagnostic In Cullen, the Secretary conceded that remand was required based on the Board's inadequate statement of reasons or bases concerning the application of DeLuca to Mr. Cullen's thoracic spine disability. Cullen, 24 Vet.App. at 84-85. The Court notes, for informational purposes only, that in an unrelated appeal adjudicated by a single judge, the Secretary conceded remand based on the Board's inadequate discussion of §§ 4.40 and 4.45 in the context of diagnostic code 5242. Dickenson v. Shinseki, No. 10-690, 2011 WL 2694690, at *4 (Vet. App. July 13, 2011); see also Bohn v. Peake, No. 06-1333, 2008 WL 563390, at *2 (Vet. App. February 19, 2008) (noting that the Secretary conceded that DeLuca applied to diagnostic codes 5235-5243). 1 4 code 5242, the Board was obligated to discuss the issue of functional loss and its failure to do so renders its statement of reasons or bases inadequate. The Court is required by statute to determine whether the appellant was prejudiced by the Board's error. 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 414 (2009). Here, the Court notes that the April 2008 VA examination report includes multiple statements regarding different aspects of functional loss. R. at 182-91 (e.g., problems lifting, pushing, and bending; limited ability to do chores; history of fatigue, decreased motion due to pain when bending over, stiffness, spasms). On the other hand, she reported no flare-ups in pain, and the examiner found no additional limitation of motion due to pain or on repetitive use. Id. The Court also notes that there are many additional medical records in the record before the Court, but that most appear to date from approximately August 2008 or earlier. Faced with these circumstances, and by the fact that the Board did not address this issue at all (and incorrectly stated it was not obligated to do so), the Court cannot conclude that the Board's error was nonprejudicial. Therefore, the Court will vacate the Board's decision and remand the matter for the Board to provide an adequate statement of reasons or bases. In light of the Court's disposition, the Court need not address Ms. Ballard's other contentions. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) ("A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and of course, before this Court in an appeal."). On remand, the appellant may present, and the Board must consider,any additional evidence and argument in support of the matters remanded. Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. 38 U.S.C. § 7112. III. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the briefs of the parties, the Court will VACATE the Board's January 28, 2011, decision and REMAND the matter for further adjudication consistent with this decision. DATED: August 31, 2012 5 Copies to: Vertie H. Ballard VA General Counsel (027) 6