Michael L. Chavis v. Denis McDonough ( 2021 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-2928
MICHAEL L. CHAVIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued November 20, 2019 Decided April 16, 2021)
Zachary M. Stolz and Kaitlyn C. Degnan, who was on the brief, both of Providence, Rhode
Island, for the appellant.
Clifton A. Prince, Appellate Attorney, with whom James M. Byrne, General Counsel; Mary
Ann Flynn, Chief Counsel; and Sarah W. Fusina, Deputy Chief Counsel, were on the brief, all of
Washington, D.C., for the appellee.
Before BARTLEY, Chief Judge, and MEREDITH and FALVEY, Judges.
BARTLEY, Chief Judge, filed the opinion of the Court. MEREDITH, Judge, filed an
opinion concurring in part and dissenting in part.
BARTLEY, Chief Judge: Veteran Michael L. Chavis appeals, through counsel, an
April 20, 2018, Board of Veterans' Appeals (Board) decision that denied entitlement to a disability
evaluation higher than 40% for a low back strain with herniated nucleus pulposus at the L4-L5
spinal level and denied entitlement to evaluations higher than 20% for right and left lower
extremity radiculopathy associated with the lumbar spine disability. Record (R.) at 2-15.1, 2 This
1
In the same decision, the Board granted increased initial evaluations for the bilateral radiculopathy from
10% to 20% and entitlement to a total disability evaluation based on individual unemployability (TDIU) from
February 1, 2017. R. at 12-13. Because these determinations are favorable to Mr. Chavis, the Court will not disturb
them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) ("The Court is not permitted to reverse findings of fact
favorable to a claimant made by the Board pursuant to its statutory authority."), aff'd in part, dismissed in part sub
nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009). In addition, the Board remanded the issue of entitlement
to TDIU on an extraschedular basis prior to February 1, 2017. R. at 14-15. Because a remand is not a final decision of
the Board subject to judicial review, the Court does not have jurisdiction to consider this issue at this time. See Howard
v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order);
38 C.F.R. § 20.1100(b) (2020).
2
The Secretary filed the record of proceedings on June 20, 2019, but subsequently filed an amended record
on July 2, 2019. All references to the record of proceedings refer to the amended record.
matter was referred to a panel of this Court, with oral argument, 3 to address whether the
requirement of ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine
(General Rating Formula), 38 C.F.R. § 4.71a (2020), can be met with evidence of the functional
equivalent of ankylosis during a flare. We hold that it can. Because the Board did not consider
whether Mr. Chavis's symptoms resulted in the functional equivalent of ankylosis, the Court will
set aside that portion of the April 2018 Board decision that denied a higher evaluation for the
lumbar spine disability and remand that matter to the Board for adjudication consistent with this
decision.
In addition, we address a second question: whether the Board had jurisdiction over the
evaluation of Mr. Chavis's radiculopathy disabilities. Because we conclude that the Board had
jurisdiction over the radiculopathy increased-evaluation issue, and because the parties agree that
the Board's determination on the merits of that issue was not supported by adequate reasons or
bases, the Court will set aside that portion of the April 2018 Board decision that denied evaluations
higher than 20% for right and left lower extremity radiculopathy and remand that matter to the
Board for adjudication consistent with this decision.
I. FACTUAL BACKGROUND
Mr. Chavis served honorably in the U.S. Army from May 1975 to April 1976. R. at 3106.
In August 1976, a VA regional office (RO) awarded service connection for a low back strain and
assigned an initial noncompensable evaluation. R. at 3810; see R. at 3820-21 (July 1976 VA
examination report reflecting a diagnosis of recurrent low back strain, negative Lasègue sign
bilaterally,4 and normal deep tendon reflexes).
In January 1999, the RO recharacterized the lumbar spine disability as a low back strain
with herniated nucleus pulposus at the L4-L5 spinal level and increased the evaluation to 20%.
R. at 3589-90. In its decision, the RO referenced a March 1998 MRI, noting that results were
"questionable whether [Mr. Chavis] had symptoms of a left L5 radiculopathy." R. at 3590.
3
Chavis v. Wilkie, U.S. Vet. App. No. 18-2928 (oral argument held Nov. 20, 2019),
https://www.youtube.com/watch?v=-1UWBM3uiEY) [hereinafter Oral Argument].
4
The Lasègue test is also called the straight leg-raising test. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY
993, 1871 (33d ed. 2019) [hereinafter DORLAND'S]. A positive Lasègue sign or a positive straight leg-raising test are
indications of lumbar radiculopathy. Id. at 1864; see R. at 3280 (December 2011 VA examination report describing
the straight leg-raising test and what constitutes a positive result).
2
In November 2008, Mr. Chavis filed a claim, asking VA to address the "[d]isability
classification for [his] lower back injury," R. at 3508, which the RO construed as a claim for an
increased evaluation for the lumbar spine disability, R. at 3463. Upon VA examination in
December 2008, he reported constant pain across the low back that radiated into both lower legs.
R. at 3474. He reported a current pain severity of 10/10 and noted that the pain was exacerbated
with physical activity and relieved by rest, but that "sometimes [he] can only lie in bed until [the
pain] goes away." Id. The examiner documented 20 degrees of lumbar flexion with pain at end
range as well as limited mobility in other directions of movement. R. at 3475. The examiner
additionally noted an antalgic gait and that, due to pain, Mr. Chavis used either a cane for
ambulation or a wheelchair for locomotion. R. at 3474. The examiner diagnosed lumbar
intervertebral disc syndrome (IVDS) of the sciatic nerve distribution and noted that Mr. Chavis
presented with sensory deficits in the left lower leg and foot,5 but noted normal reflexes and no
motor weakness. R. at 3475. The examiner noted a positive straight leg-raising test bilaterally but
no ankylosis. R. at 3474.
In a February 2009 decision, the RO increased the lumbar spine evaluation to 40% based
on the December 2008 examiner's documentation of forward flexion limited to 30 degrees or less.
R. at 3462-65; see 38 C.F.R. § 4.71a. In November 2009, Mr. Chavis filed a Notice of
Disagreement (NOD), seeking to "[a]ppeal claims on past claim on back problems," R. at 3439-
40, and, following a February 2010 Statement of the Case (SOC), R. at 3397-417, he perfected an
appeal to the Board in April 2010, R. at 3394.
Upon VA examination in December 2011, Mr. Chavis reported constant low back pain that
fluctuated in intensity "with no specific activity or movement" and resulted in "extreme" back pain,
leg weakness, and an inability to bend forward. R. at 3277. The examiner documented 35 degrees
of forward flexion with pain at end range, along with limited mobility in additional directions of
movement, which did not change with repetitive testing. R. at 3277-79. During the examination,
Mr. Chavis reported radicular pain, paresthesias, and decreased sensation in the left leg. R. at 3280-
81. However, following examination, the examiner noted that Mr. Chavis presented with left-sided
radiculitis secondary to the lumbar spine disability, not radiculopathy. R. at 3285; see R. at 3280
5
Although unclear, it appears that the examination report contains a typographic error, as the examiner
highlighted that sensory deficits in the left leg indicated a diagnosis of IVDS involving the right sciatic nerve. R. at
3475.
3
(recording a negative straight leg-raising test bilaterally), 3283-84 (referencing electromyography
and nerve conduction testing results). The examiner noted that Mr. Chavis's decreased sensation
in the left lower leg and foot was due to a 2006 left foot crush injury sustained at his work. R. at
3285; see R. at 3277 (noting that, following the 2006 injury, Mr. Chavis was treated with several
casts and later developed complex regional pain syndrome (CRPS)).
In January 2012, Mr. Chavis sought treatment for chronic low back pain that radiated into
the left anterior thigh. R. at 3268. At that time, he described "episodes" of pain that left him unable
to move, which he indicated occurred about five times per year. Id. He stated that when he is not
in an "episode," his pain level is at a 2/10, but when he is in an "episode," "his pain [is] a 50/10."
R. at 3269. The treating healthcare clinician noted normal range of motion, albeit with decreased
speed of movement. Id. The clinician concluded that Mr. Chavis was experiencing episodic
discogenic pain. R. at 3270.
In June 2012, the RO issued a Supplemental SOC (SSOC). R. at 3129-33. As relevant, the
RO indicated that the diagnosis of left lumbar radiculitis was added to Mr. Chavis's service-
connected disability as part of the lumbar disorder and was not a separate diagnosis. R. at 3132.
The RO stated that the December 2011 VA examiner "was clear that this diagnosis is based on
subjective symptoms and does not constitute a separate diagnosis of radiculopathy." Id.During a December 2015 Board hearing, Mr. Chavis testified about the episodic nature of
his back and leg symptoms. Specifically, he described that, when he is experiencing a period of
increased symptoms, he is unable to move and is either confined to his bed or dependent on a
walker or wheelchair. R. at 3027-36. In describing the severity of several past episodes, he
recounted one episode in 1997 where he was confined to his bed for 8 months, R. at 3028, 3031-
32, and several other episodes that required calling for an ambulance to transport him out of bed
and to the hospital for treatment, most recently in 2003 or 2004, R. at 3027-28, 3036. He also
described radiating pain and numbness in his legs. R. at 3037, 3039-40.
In February 2016, the Board remanded the lumbar spine claim, in part, to obtain a VA
examination addressing the severity of the lumbar spine disability as well as to determine the
presence of neurologic manifestations. R. at 3011-15. Upon the subsequent VA examination in
February 2017, the examiner documented 70 degrees of pain-free forward flexion with no change
following repetitive testing. R. at 638. The examiner indicated that the examination was being
conducted during a flare-up and that Mr. Chavis's functional ability was not significantly limited
4
by pain, weakness, fatigability, or incoordination. R. at 639. The examiner also noted no signs of
radiculopathy, no ankylosis, and no IVDS. R. at 641-42. Following a review of conflicting medical
evidence, the examiner indicated that the lower extremity functional impairment noted during the
December 2011 examination was "only due to [the] left crush injury in 2006." R. at 648.
The examiner also indicated that Mr. Chavis demonstrated positive straight leg-raising
testing bilaterally, but no radicular pain or other signs or symptoms of radiculopathy. R. at 641.
Based on this apparent discrepancy, see supra n.4, the RO requested an addendum medical
opinion. R. at 82. In the November 2017 addendum opinion, the examiner clarified that Mr. Chavis
presented with symptoms of radiculopathy and specifically noted moderate numbness in both
lower legs resulting in moderate bilateral radiculopathy. R. at 82-83. She further indicated that the
bilateral radiculopathy was a progression of the previous diagnosis of low back strain with
herniated nucleus pulposus at the L4-L5 spinal level. R. at 83-84.
In December 2017, the RO issued an SSOC continuing the denial of an evaluation higher
than 40% for the lumbar spine disability. R. at 55-69. In January 2018, the RO awarded service
connection for right and left lower extremity radiculopathy as associated with the lumbar spine
disability and assigned an initial 10% evaluation for each leg. R. at 41-46, 50-54.6
In the April 2018 decision on appeal, the Board, as relevant, adjudicated three issues:
(1) entitlement to an evaluation higher than 40% for the lumbar spine disability; (2) entitlement to
an initial evaluation higher than 10% for left lower extremity radiculopathy associated with the
lumbar spine disability; and (3) entitlement to an initial evaluation higher than 10% for right lower
extremity radiculopathy associated with the lumbar spine disability.
With respect to the lumbar spine disability, the Board noted that Mr. Chavis could be
evaluated under either the General Rating Formula or the Formula for Rating IVDS Based on
Incapacitating Episodes (Incapacitating Episodes Formula), whichever resulted in a higher
evaluation. R. at 6. After reviewing the evidence, the Board found that the criteria for an evaluation
higher than 40% under either formula had not been met. R. at 10. The Board noted that, for a higher
evaluation to be warranted, "there must be evidence of either ankylosis of the spine[] or IVDS
treated by bed rest prescribed by a physician." Id. However, the Board found that "[n]either of
these symptoms is present." Id. The Board explained that the evidence indicated that Mr. Chavis's
6
Although this decision is dated in December 2017, R. at 50, the RO did not notify Mr. Chavis of its decision
until January 2018, R. at 41. The Court will refer to it as a January 2018 decision.
5
lumbar spine disability did not manifest in ankylosis and, although he reported episodes of flare-
ups of his back pain necessitating hospital treatment, none had occurred during the relevant appeal
period and there was no evidence that he was prescribed bed rest by a physician. Id. The Board
then "considered the provisions of [38 C.F.R. §§] 4.40 and 4.45," but found them not applicable
because "the [v]eteran already has the highest available rating based on restriction of motion."
R. at 10-11 (citing Johnston v. Brown, 10 Vet.App. 80, 85 (1997)).
The Board then found that it had jurisdiction over the appropriate evaluations for the
radiculopathy disabilities because "ratings for bilateral radiculopathy are part and parcel of the
claim for an increased rating for a lumbar spine disability." R. at 3. The Board noted that the
radiculopathy disabilities were assigned initial 10% evaluations under 38 C.F.R. § 4.124a,
Diagnostic Code (DC) 8520, which contemplates paralysis of the sciatic nerve, but increased those
evaluations to 20% based on the November 2017 examiner's opinion that the radiculopathy
disabilities were moderate in severity. R. at 11-12. The Board denied evaluations higher than 20%
because the veteran's radiculopathy was not moderately severe. R. at 12. This appeal followed.
II. LUMBAR SPINE DISABILITY
A. Arguments
Mr. Chavis argues that the Board erred in relying on Johnston to determine that §§ 4.40
and 4.45 did not apply to his lumbar spine evaluation. Appellant's Brief (Br.) at 8; see R. at 10-11.
He contends that the Court in Johnston found that the Board did not need to consider additional
functional loss due to pain, not because the appellant was receiving the maximum evaluation based
on limitation of motion, but because the appellant was receiving the maximum evaluation for the
particular DC. Appellant's Br. at 8-9. He further argues that, because "[a]n ankylosed joint presents
functional loss that manifests as complete limitation of motion," §§ 4.40 and 4.45 are for
application within the General Rating Formula because of the availability of higher evaluations.
Id. at 9. He additionally argues that the Board's failure to apply §§ 4.40 and 4.45 was prejudicial
because his disability more nearly approximates the functional equivalent of unfavorable
ankylosis. Id. at 10.
In response, the Secretary argues that the evidence of record, including the 2008, 2011, and
2017 VA examination reports, failed to demonstrate functional loss equivalent to a restriction of
range of motion contemplated by unfavorable ankylosis. Secretary's Br. at 11-14; see id. at 14
6
("Each examiner determined that [Mr. Chavis's] spine was not fixed in flexion or extension, even
when the examination was performed during a flare-up."). He additionally argues that the Board
properly relied on Johnston, which he asserts "plainly held that the Board does not err in its denial
of entitlement to an evaluation based on ankylosis, where ankylosis was not shown on multiple
examinations." Id. at 16 (citing Johnston, 10 Vet.App. at 84).
At times in his brief, the Secretary appears to contend that, even if a claimant could satisfy
the regulation by demonstrating the functional equivalent of ankylosis, the appellant here had not
done so. See, e.g., id. at 13 ("[Y]et no examination found ankylosis or the equivalent of fixation in
flexion or extension."). However, at oral argument, he affirmatively took the position that the
General Rating Formula does not contemplate the functional equivalent of ankylosis. Oral
Argument at 39:36-40:46, 42:19-43:50, 47:20-49:08, 51:37-52:12 ("[N]o caselaw or regulation
supports the finding of functional equivalency [of ankylosis.]"). He argued that, because of the
distinction between limitation of motion and ankylosis (consolidation of the joint resulting in
restriction of motion), the constructs of functional equivalency do not apply. Id. at 39:36-40:46,
47:20-49:08. In essence, the Secretary argues that, because ankylosis involves a restriction of
motion or consolidation of the joint, a claimant cannot demonstrate the functional equivalent of
ankylosis.
B. Analysis
1. Ankylosis and VA's Schedule for Rating Disabilities
Ankylosis is a medical term meaning "[i]mmobility and consolidation of a joint due to
disease, injury, or surgical procedure." DORLAND'S at 94; see STEADMAN'S MEDICAL DICTIONARY
95 (28th ed. 2006) ("Stiffening or fixation of a joint as the result of a disease process, with fibrous
or bony union across the joint."); CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989) ("A
stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention."). The
word "ankylosis" has been part of the Rating Schedule since it was published in 1919, when it was
titled "Schedule of Ratings for Amputations and Ankylosis." Although spine conditions were not
included in the 1919 edition, they were included in the 1925 edition, at which time the Rating
Schedule provided separate evaluations for "[a]nkylosis (complete fixation)" and for "[l]imitation
of motion." The Schedule for Rating Disabilities, Musculoskeletal System (1925). The provision
of separate evaluations for ankylosis and limitation of motion was maintained in the Rating
Schedule until VA adopted the General Rating Formula in 2003. See Schedule for Rating
7
Disabilities; The Spine, 67 Fed. Reg. 56509, 56510 (Sept. 4, 2002) (proposed rule); Schedule for
Rating Disabilities; The Spine, 68 Fed. Reg. 51454 (Aug. 27, 2003) (final rule).7
Spine disabilities other than IVDS are evaluated under the General Rating Formula.
38 C.F.R. § 4.71a, DCs 5235-5242. 8 With respect to disabilities involving the thoracolumbar
spine, the General Rating Formula provides evaluations as follows:
100%: Unfavorable ankylosis of the entire spine
50%: Unfavorable ankylosis of the entire thoracolumbar spine
40%: Forward flexion of the thoracolumbar spine 30 degrees or less; OR, favorable ankylosis
of the entire thoracolumbar spine
20%: 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
10%: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than
85 degrees; OR, combined range of motion of the thoracolumbar spine greater than
120 degrees but not greater than 235 degrees; OR, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal contour; OR, vertebral
body fracture with loss of 50% or more of the height
38 C.F.R. § 4.71a. Under the General Rating Formula, an evaluation is based upon "orthopedic
findings," including ankylosis, limitation of motion, muscle spasm, guarding, and tenderness.
67 Fed. Reg. at 56511.
In 2002, when VA proposed to implement the General Rating Formula, it noted that
ankylosis had been defined by the then-current Rating Schedule as "bony fixation" but, while the
Rating Schedule differentiated between favorable and unfavorable ankylosis, it did not define
either term. Id. at 56510. Therefore, VA proposed to add the current Note (5) to define favorable
7
Ankylosis is not limited to spinal joints, but can occur in any joint, as is reflected throughout various DCs
within the Rating Schedule. See 38 C.F.R. § 4.71a, DC 5200 (shoulder), DC 5205 (elbow), DC 5214 (wrist), DCs
5216-5227 (digits of the hand), DC 5250 (hip), DC 5256 (knee), DC 5270 (ankle). Our analysis is limited to the
General Rating Formula, and we take no position on the application of the principle of functional equivalence to other
parts of the Rating Schedule.
8
IVDS is evaluated under either the General Rating Formula or the Incapacitating Episodes Formula,
whichever method is productive of a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.
38 C.F.R. § 4.71a, DC 5243. Although the Board concluded that Mr. Chavis was not entitled to a higher evaluation
under the Incapacitating Episodes Formula, Mr. Chavis does not argue that the Board erred in this portion of its
analysis and the Court will not address it further. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that
the Court has discretion to deem unargued issues abandoned).
8
and unfavorable ankylosis, with unfavorable ankylosis being defined as a condition in which the
entire spine or an entire spinal segment is fixed in flexion or extension and the ankylosis results in
one or more associated complications. Id. at 56511; see 38 C.F.R. § 4.71a, General Rating
Formula, Note (5). 9 In its proposed rule, VA noted that the presence of additional symptoms,
"which may be indications for spinal surgery, represent disability greater than limitation of motion
of the spine alone." 67 Fed. Reg. at 56511. In contrast, ankylosis is considered favorable if the
fixation is in a neutral position (0 degrees) or does not result in an associated complication. See
38 C.F.R. § 4.71a, General Rating Formula, Note (5).
2. Ankylosis is an objective finding.
Despite the Secretary's assertion during oral argument that ankylosis is a diagnosis, see
Oral Argument at 35:15-:45, 37:25-:35; see also id. at 43:50-45:01 (characterizing consolidation
of the spine as a disease process),10 it is worth reiterating that VA considers ankylosis to be an
objective finding like limitation of motion, muscle spasm, guarding, and tenderness. 67 Fed. Reg.
at 56510 ("We propose to delete the seven diagnostic codes . . . that involve findings of ankylosis
or limitation of motion of the spine because, rather than representing conditions or diagnoses, they
are findings that are common to a variety of spinal conditions."); id. at 56511 ("[W]e propose to
evaluate all disabilities of the spine . . . using a general formula that will be based on the orthopedic
findings such as limitation of motion, ankylosis, muscle spasm, guarding, and tenderness, present
in the individual case."); see 38 C.F.R. § 4.71a, DC 5002 (describing ankylosis as a "residual[]" of
rheumatoid arthritis), VA Adjudication Procedures Manual (M21-1) III.iv.4.A.2.n (defining
ankylosis as "a condition of, or term used for the sign/symptom of, abnormal stiffness, immobility,
or abnormal bending of a joint"), M21-1 III.iv.4.B.1.a-c (describing ankylosis as a possible
"symptom" of rheumatoid arthritis), M21-1 III.iv.4.B.2.b-d (describing ankylosis as a possible
"symptom" of degenerative arthritis); see also R. at 10 (Board's characterization of ankylosis as a
"symptom").
9
The Note defines the list of complications as follows: difficulty walking because of a limited line of vision;
restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal
symptoms due to pressure on the costal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical
subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating
Formula, Note (5).
10
But see Oral Argument at 42:20-:35 (characterizing ankylosis as a "medical finding"); Secretary's Br. at
16-17 (characterizing unfavorable ankylosis as "the only symptom listed in DC 5237" warranting a 50% evaluation).
9
3. Sections 4.40 and 4.45 apply when evaluating joint condition severity for the
presence of the functional equivalence of ankylosis.
The Rating Schedule provides prefatory regulations under the umbrella heading of
"Musculoskeletal System" that are "intended to be used in understanding the nature of a veteran's
disability." Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016); see Lyles v. Shulkin,
29 Vet.App. 107, 117 (2017) (explaining that the prefatory regulations—including §§ 4.40 and
4.45—help "'explain how to arrive at proper evaluations'" for musculoskeletal disabilities (quoting
Petitti v. McDonald, 27 Vet.App. 415, 424 (2015))). Although any individual evaluation must be
"based on the criteria set forth in § 4.71a," Thompson, 815 F.3d at 786, a veteran may be entitled
to "a higher musculoskeletal evaluation than would otherwise be supported by mechanical
application of a given DC" when his or her disability is properly viewed through the lens of those
leading regulations, Lyles, 29 Vet.App. at 117.
Specifically, a veteran may be entitled to a higher evaluation where there is evidence that
his or her disability causes additional functional loss—i.e., "the inability . . . to perform the normal
working movements of the body with normal excursion, strength, speed, coordination[,] and
endurance"—including as due to pain. 38 C.F.R. § 4.40 (2020); see Mitchell v. Shinseki,
25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-06 (1995). Additionally, a
higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of
movement in different planes, including changes in the joint's range of movement, strength,
fatigability, or coordination. 38 C.F.R. § 4.45 (2020); see Mitchell, 25 Vet.App. at 37; DeLuca,
8 Vet.App. at 206-07. "Elevation of a veteran's musculoskeletal disability under either of these
methods, colloquially known as the DeLuca factors, is based on additional functional loss with use
or during flare-ups, which should, if feasible, be portrayed in terms of the degree of additional
range-of-motion lost." Lyles, 29 Vet.App. at 118 (citing DeLuca, 8 Vet.App. at 206).
Caselaw dictates that, when evaluating joint disabilities and their manifestations,
adjudicators must consider §§ 4.40 and 4.45 to fully understand the nature of a veteran's disability.
See Thompson, 815 F.3d at 785; Lyles, 29 Vet.App. at 117-18; see also Petitti, 27 Vet.App. at 424.
And our caselaw makes clear that application of the DeLuca factors may result in a higher
evaluation than one based solely on limited motion if a claimant demonstrates functional loss
equivalent to that contemplated by the higher evaluation. See Lyles, 29 Vet.App. at 117-18;
DeLuca, 8 Vet.App. at 206. Although in the past we have focused on application of the DeLuca
factors in the context of limitation of motion, nothing in those regulations or our caselaw suggests
10
that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in
essence, a complete limitation of motion. See DORLAND'S at 94. This is consistent with VA's aim
to "ensure that a claimant is properly compensated, but not overcompensated, for the actual level
of impairment." Lyles, 29 Vet.App. at 118 (citing Amberman v. Shinseki, 570 F.3d 1377, 1380
(Fed. Cir. 2009)).
The provisions of §§ 4.40 and 4.45 are for application when evaluating joint disabilities
and their manifestations, which may include ankylosis. Notably, § 4.45 directs adjudicators to
identify certain considerations when evaluating joint disabilities, including whether the joint
demonstrates less movement than normal. And it specifically identifies ankylosis among the
possible causes of less movement. 38 C.F.R. § 4.45(a). 11 Section 4.40 directs adjudicators to
consider the various ways functional loss manifests in musculoskeletal disabilities, including by
interfering with the normal working movements of the body with normal excursion. Moreover,
§ 4.40 provides that "functional loss may be due to . . . pain, supported by adequate pathology and
evidenced by the visible behavior of the claimant undertaking the motion." 38 C.F.R. § 4.40.
Accordingly, application of §§ 4.40 and 4.45 permits consideration under the General Rating
Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that
contemplated by ankylosis—in other words, if it is the functional equivalent of ankylosis. Accord
Johnson v. Brown, 9 Vet.App. 7, 11 (1996) (concluding that §§ 4.40 and 4.45 apply to DCs that
are "predicated on loss of range of motion").
Neither the Board nor the Secretary persuasively demonstrates that these regulations do
not apply when contemplating joint ankylosis. The Board based its conclusion on the Court's
decision in Johnston. R. at 10-11 (citing Johnston, 10 Vet.App. at 85). In Johnston, the appellant
was in receipt of the maximal 10% evaluation under 38 C.F.R. § 4.71a, DC 5215, which
contemplates limitation of motion of the wrist. Johnston, 10 Vet.App. at 84-85. The Board in that
case considered application of an evaluation under DC 5214, which contemplates ankylosis of the
wrist, but found no evidence of ankylosis, a finding the Court determined was not clearly
erroneous. Id. at 84-85 (noting that a VA examiner documented good mobility and no pain on
movement). On appeal, the appellant argued, and the Secretary agreed, that the Board failed to
11
The Secretary acknowledges that § 4.45 mentions ankylosis, but argues that the regulation directs
adjudicators to consider ankylosis only when a joint is ankylosed because, in his view, there can be no functional
equivalent of ankylosis. Oral Argument at 39:36-40:46.
11
consider functional loss due to pain; however, the Court found that a remand was not appropriate
because the appellant was already receiving the maximal evaluation under DC 5215. Id.
Here, the Board relied on Johnston as holding that §§ 4.40 and 4.45 are not for application
when a claimant already has the highest available evaluation based on limitation of motion. R. at
11.12 However, contrary to the Board's interpretation, Johnston does not stand for the proposition
that the DeLuca factors are not applicable when a claimant is receiving the maximal evaluation
based on limitation of motion. Instead, the Court in Johnston held that, when a claimant was
receiving the maximal evaluation for a joint disability not manifesting in ankylosis under a
particular DC, the Board's failure to consider functional loss under §§ 4.40 and 4.45 in evaluating
the disability under that DC was harmless error. Johnston, 10 Vet.App. at 85; see Spencer v. West,
13 Vet.App. 376, 382 (2000) (also concluding that the Board's failure to consider §§ 4.40 and 4.45
in evaluating a wrist disability was harmless where the appellant was receiving the maximal
evaluation under DC 5215 and there was no evidence of ankylosis).
In contrast to Johnston and Spencer, Mr. Chavis is not receiving the maximal evaluation
available under DC 5237 via the General Rating Formula, and he is arguing that his spine disability
results in the functional equivalent of ankylosis during flare-ups that render him unable to move.
Therefore, the Board's reliance on Johnston to conclude that §§ 4.40 and 4.45 were not for
application was incorrect.13
12
The Board specifically referred to Mr. Chavis having the highest evaluation based on "restriction of
motion," R. at 11; however, DC 5215—the operative DC in Johnston—instead uses the term "limitation of motion,"
38 C.F.R. § 4.71a, DC 5215 (1996). To that end, the Secretary emphasized during oral argument that ankylosis is not
just limitation of motion, but restriction of motion. Oral Argument at 40:16-:33. Because it is undisputed that Mr.
Chavis is not receiving the highest evaluation available for ankylosis and because the Board did not discuss ankylosis
in the same terms as argued by the Secretary, the Court assumes that the Board's use of "restriction of motion" was
intended to be synonymous with "limitation of motion," which is consistent with its analysis. Of course, if the Board
was using "restriction of motion" in the same manner as the Secretary—i.e., as synonymous with ankylosis—then the
Board's statement would be a clear misstatement of the facts.
13
In 1997, VA's Office of General Counsel arrived at a similar conclusion regarding Johnston vis-à-vis the
applicability of §§ 4.40 and 4.45 in determining the proper evaluation for IVDS under DC 5293, the predecessor to
DC 5243. VA Gen. Coun. Prec. 36-97 (Dec. 12, 1997) ¶¶ 4, 7. In that opinion, the General Counsel noted that the
Court in Johnston found that a remand was inappropriate to consider entitlement to a higher evaluation because there
was no evidence of ankylosis. Id. at ¶ 7. As a result, the General Counsel concluded that, even if a veteran was
receiving an evaluation equivalent to the maximal evaluation based on limitation of motion of the spine, consideration
of a higher evaluation would still be appropriate under DC 5293 if entitlement to the higher evaluation was supported
by the evidence. Id.
12
The crux of the Secretary's argument against the application of the DeLuca factors is based
on a distinction he makes between limitation of motion and restriction of motion; however, he fails
to persuasively argue why such a distinction precludes application of §§ 4.40 and 4.45. The
Secretary argues that VA has always considered ankylosis separate from limitation of motion,
noting, as discussed above, that the Rating Schedule historically provided evaluations under
separate DCs for limitation of motion of the spine versus ankylosis of the spine, a practice still
employed today for other joints. Because of this dichotomy, he argues that ankylosis requires
something more than limitation of motion. He further argues that, because ankylosis is
consolidation of the joint, it is not amenable to assessment of functional equivalence.
Even accepting the Secretary's premise that ankylosis is distinct from limitation of motion
and generally results in a greater level of functional impairment than that of limited motion,14 such
differences—which may be important considerations in determining whether a veteran's joint
disability actually manifests in functional impairment equivalent to ankylosis—do not explain why
§§ 4.40 and 4.45 should not apply when considering whether limitation of motion of a joint results
in the functional equivalence of joint ankylosis consistent with the regulatory language and
existing caselaw.
C. Application
The Board's determination of the appropriate degree of disability is a finding of fact subject
to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown,
10 Vet.App. 93, 97 (1997). In reaching a decision, the Board is required to consider all 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). Whether a certain law or
regulation was applicable to an undisputed set of facts is a question of law, which the Court reviews
de novo. Emerson v. McDonald, 28 Vet.App. 200, 206 (2016).
The Court concludes that the Board committed an error of law when it determined that
§§ 4.40 and 4.45 were not for application because Mr. Chavis was already receiving a 40%
evaluation for his lumbar spine disability, the highest evaluation available based on limitation of
motion. Therefore, the Board incorrectly foreclosed application of §§ 4.40 and 4.45 in evaluating
14
In this regard, the Court recognizes that the Rating Schedule generally provides higher evaluations for joint
ankylosis than joint limitation of motion.
13
Mr. Chavis's lumbar spine disability. Accordingly, the Court concludes that remand of the lumbar
spine claim is warranted for readjudication. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
(holding that remand is the appropriate remedy "where the Board has incorrectly applied the law").
Mr. Chavis additionally argues that the VA examinations upon which the Board relied
contained insufficient information regarding the extent of his functional loss due to flare-ups.
Appellant's Br. at 16-20. The adequacy of a medical examination or opinion is a question of fact,
which the Court reviews for clear error. See 38 U.S.C. § 7261(a)(4); see D'Aries v. Peake,
22 Vet.App. 97, 104 (2008) (per curiam). The Board did not discuss the adequacy of the
examinations in its April 2018 decision, see R. at 2-15, and the Court may not decide that factual
matter in the first instance, see Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate
tribunals are not appropriate fora for initial fact finding.").
Nevertheless, the Secretary argues that the Board was not obligated to discuss the adequacy
of the examination reports because those reports appear adequate on their face. Oral Argument at
53:18-55:39. 15 To the extent that he argues that the Board made an implicit finding that the
examination reports were adequate, any such implicit finding would be in part predicated on the
erroneous legal conclusion that §§ 4.40 and 4.45 and considerations of functional loss during flare-
ups did not apply. Because we have determined that the Board's legal conclusion about functional
loss was incorrect, we cannot properly review any implicit determination regarding the adequacy
of the examinations. See D'Aries, 22 Vet.App. at 104. Mr. Chavis is free to raise those arguments
regarding the adequacy of the examinations to the Board upon readjudication.
III. RADICULOPATHY DISABILITIES16
A. Arguments
In his briefs, Mr. Chavis argued that the Board erred in denying higher evaluations for the
radiculopathy disabilities when it adopted the assessment of the November 2017 VA examiner
without articulating the standards it used to assign the 20% evaluations. Appellant's Br. at 20-25.
He argues that the Board's failure to articulate the standard it used to conclude that his disability
was moderate in severity—as opposed to moderately severe, the next higher level of severity in
15
To that end, Mr. Chavis argues that, at a minimum, the February 2017 examination report is patently
unreliable. Oral Argument at 10:30-13:13 (discussing alleged inconsistencies of the three examination reports).
16
Judge Meredith does not join in this part of the Court's opinion.
14
the Rating Schedule—renders its decision arbitrary and capricious. Id. at 23-24 (citing Johnson v.
Wilkie, 30 Vet.App. 245, 255 (2018)). The Secretary conceded that remand of the issue of
appropriate radiculopathy evaluations was warranted, agreeing that "the Board failed to disclose
the standard that it used to render its determination" that evaluations higher than 20% were not
warranted. Secretary's Br. at 18 (citing Johnson, 30 Vet.App. at 255).
Although the merits of the radiculopathy evaluations were not discussed at oral argument,
the Court asked the parties to address the Board's jurisdiction, and by extension the Court's
jurisdiction, to review the Board's decision regarding the appropriate radiculopathy evaluations.
Both parties agreed that the Board had jurisdiction over the radiculopathy evaluations. Oral
Argument at 31:06-32:33, 55:40-56:58. Additionally, the Secretary reaffirmed his position that the
issue of the appropriate evaluations should be remanded in light of the Board's inadequate reasons
or bases. Oral Argument at 55:40-56:58.
However, on January 16, 2020, the Secretary filed a "Notice of Clarification to the Court,"
clarifying that, although he was not challenging the Board's award of increased 20% evaluations
for the radiculopathy disabilities, "the Board technically did not have jurisdiction" over those
matters because Mr. Chavis did not file an NOD following the January 2018 RO decision that
awarded service connection and assigned the initial 10% evaluations for bilateral radiculopathy.
Following the Secretary's clarification, the Court, on April 30, 2020, ordered the parties to file
supplemental memoranda of law addressing the Board's jurisdiction to adjudicate increased
evaluations for the radiculopathy disabilities.
Mr. Chavis argues that the Board properly had jurisdiction over the radiculopathy
evaluations because those matters were part of the claim for an increased evaluation for the lumbar
spine disability. Appellant's Supplemental Memorandum of Law (Supp. Memo.) at 2-11 (citing
Harper v. Wilkie, 30 Vet.App. 356, 361-62 (2018)). In so arguing, he relies on the plain language
of Note (1) of the General Rating Formula, the M21-1, and Board decisions assuming jurisdiction
in the same manner as the Board did in Mr. Chavis's case. Id. at 2-9. Alternatively, he argues that
his November 2009 NOD as to the lumbar spine evaluation placed the radiculopathy evaluations
in appellate status because it expressed disagreement with the February 2009 RO decision that did
not address neurologic complications. Id. at 10-11.
In contrast, the Secretary argues that the Board erroneously determined that it had
jurisdiction over the radiculopathy evaluations because Mr. Chavis did not file an NOD following
15
the January 2018 RO decision granting service connection and assigning the initial evaluations.
Secretary's Supp. Memo. at 3-14. He further argues that, although Note (1) of the General Rating
Formula provides that neurologic abnormalities associated with a spine disability are to be
evaluated separately, neither the clear language of Note (1) nor the history or purpose of the Note
eliminates the requirement that a claimant must file an NOD regarding the propriety of those
separate evaluations. Id. at 6-8. He additionally argues that, unlike the part-and-parcel nature of
TDIU as analyzed in Harper, the propriety of the evaluations for neurologic abnormalities
associated with spine disabilities is a downstream issue requiring a separate NOD. Id. at 12-14.
B. The Board had jurisdiction over the radiculopathy evaluations.
Every "statutory tribunal must ensure that it has jurisdiction over each case before
adjudicating the merits"; to that end, "a potential jurisdictional defect may be raised by the court
or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must
be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see Smith v. Brown,
10 Vet.App. 330, 332 (1997). "Accordingly, the Court always has jurisdiction to determine its
jurisdiction over a case." Smith, 10 Vet.App. at 332.
The Court concludes that, given the nature and progression of Mr. Chavis's lumbar spine
condition and VA's duty to sympathetically construe his broadly worded, pro se filings, the issues
of increased evaluations for Mr. Chavis's bilateral lower extremity radiculopathy were part of his
claim seeking a higher evaluation for the underlying lumbar spine disability.17
First, the lay and medical evidence throughout the appeal period of the lumbar spine claim
reflects neurologic signs and symptoms that have now been attributed to the bilateral lower
extremity radiculopathy. During the December 2008 VA examination, Mr. Chavis reported
radiating pain into both legs, and the examiner documented a positive straight leg-raising test
bilaterally and sensory deficits in the left lower leg and foot. R. at 3474-75. In April 2011, Mr.
Chavis reported radiating pain into his left thigh, and his treating VA physician documented a
positive straight leg-raising test and decreased sensation in the left leg. R. at 3330-33. During the
December 2011 VA examination, Mr. Chavis reported left-sided radiating pain, paresthesias, and
sensory deficits. R. at 3280-81. In January 2012, he reported radiating pain into his left thigh, and
his treating physician noted absent patellar reflexes and left foot weakness and decreased
17
We leave for another day the question whether issues of higher evaluations for radiculopathy are always
part of claims seeking higher evaluations for the underlying spine disability.
16
sensation. R. at 3268-69. And in the November 2017 addendum medical opinion, the VA examiner
noted bilateral lower extremity numbness. R. at 82-83.
Although medical professionals have ascribed these neurologic signs and symptoms to
differing diagnoses throughout the appeal period, see R. at 3475 (December 2008 VA examiner
diagnosing IVDS affecting the sciatic nerve), 3333-34 (April 2011 VA physician noting both
CRPS following foot trauma and lumbosacral radiculopathy), 3285 (December 2011 VA examiner
documenting IVDS and diagnosing radicular pain as left-sided radiculitis but ascribing the sensory
deficits to the 2006 crush injury), 3269 (January 2012 VA physician diagnosing discogenic pain
but ascribing the left lower leg deficits to CRPS), 82-83 (November 2017 VA examiner diagnosing
bilateral lower extremity radiculopathy); see also R. at 3589-90 (January 1999 RO decision noting
that March 1998 MRI results were questionable for left lumbar radiculopathy), VA now considers
these symptoms demonstrative of bilateral lower extremity radiculopathy and has evaluated those
symptoms under the DC contemplating involvement of the sciatic nerve, R. at 11-12, 50-52.
Moreover, the November 2017 examiner specifically stated that the radiculopathy was a
progression of the service-connected lumbar spine disability and not a new and separate condition.
R. at 83-84. In sum, the lay and medical evidence presented and developed in connection with the
lumbar spine claim indicates that Mr. Chavis's radiculopathy is part of his lumbar spine disability.
Second, VA has considered Mr. Chavis's reports of neurologic sequelae as part of his claim
seeking increased compensation for his back disability. In the June 2012 SSOC, the RO noted that,
although the December 2011 VA examiner did not diagnose radiculopathy, he diagnosed
radiculitis as accounting for Mr. Chavis's radicular pain. R. at 3132. Accordingly, the RO "added
left lumbar radiculitis to [his] diagnoses as part of the disease process of [his] service[-]connected
disability." Id. Following discussion of neurologic symptoms and the availability of separate
evaluations during the December 2015 Board hearing, see R. at 3036-40, the Board remanded the
lumbar spine claim in February 2016, in part, to afford Mr. Chavis a new VA examination, R. at
3011-15. As relevant, the Board specifically directed the VA examiner to identify all neurologic
manifestations of the service-connected back condition and to render an opinion regarding the
severity of any identified manifestations. R. at 3014.
The Board's and the RO's consideration of Mr. Chavis's lumbar spine disability as including
neurologic manifestations is consistent with provisions of VA's Adjudication Procedures Manual
that discuss the interrelated nature of orthopedic and neurologic manifestations of spine
17
disabilities. Specifically, the M21-1 details that, when using the General Rating Formula,
adjudicators are to "evaluate conditions based on chronic orthopedic manifestations . . . and any
associated neurological manifestations . . . by assigning separate evaluations for the orthopedic
and neurological manifestations." M21-1, III.iv.4.A.5.a; see 38 C.F.R. § 4.71a, General Rating
Formula, Note (1).18 And the M21-1 instructs adjudicators that, "[b]ecause spinal disease can cause
objective neurologic abnormalities, the onset of a neurologic complication represents medical
progression or worsening of the spinal disease" and to treat a claim asserting a new neurologic
complication as a claim for increase of the underlying spine disease. M21-1, III.iv.4.A.5.d.
VA's consideration of Mr. Chavis's neurologic manifestations as part of the claim seeking
higher compensation for the lumbar spine disability is also consistent with VA's duty to
sympathetically read pro se pleadings. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.
2001) ("Congress has mandated that the VA is 'to fully and sympathetically develop the veteran's
claim to its optimum.'" (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998))). Given
that there was evidence of neurologic manifestations contemporaneous with Mr. Chavis's
pleadings and that those pleadings were broadly worded, see R. at 3508 (November 2008 informal
claim), 3440 (November 2009 NOD), a sympathetic reading of those readings compels a
conclusion that they encompassed the appropriate evaluations for the neurologic component of
Mr. Chavis's lumbar spine disability. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000)
(noting that a "broad NOD . . . may confer jurisdiction over the entire request for a benefits
entitlement"). Although clarity may not have been obtained until VA confirmed the source of the
neurologic manifestations, such hindsight does not change VA's duties to consider the "general
lenity rule" in determining the scope of the claim based on the claimant's filings and evidence of
record. See Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020).
Therefore, the Court concludes that the Board properly had jurisdiction over the issues of
increased evaluations for bilateral lower extremity radiculopathy. Because Mr. Chavis's
radiculopathy was part of his claim seeking higher compensation for his lumbar spine disability,
the Board did not err, in this particular case, by choosing to address the appropriate evaluation for
the radiculopathy component of Mr. Chavis's lumbar spine condition. See Bernard v. Brown,
18
Similarly, the M21-1 instructs adjudicators that, when evaluating spinal conditions under the Incapacitating
Episodes Formula, separate evaluations for associated neurologic manifestations are not warranted because evaluating
IVDS based on incapacitating episodes already contemplates neurologic manifestations. M21-1, III.iv.4.A.5.a, e.
18
4 Vet.App. 384, 392 (1993) (holding that, where the Board properly had appellate jurisdiction to
review a claim for benefits, "it follows that the Board was authorized to decide all questions
presented on the record before it that were necessary to its decision on that matter"); see also
Godfrey v. Brown, 7 Vet.App. 398, 409-10 (holding that Bernard applies where the questions are
components of a single claim for benefits and characterizing Mr. Godfrey's claim for service
connection for an ankle disability as a separate matter because it "was not a component of the
back-condition" claim).
C. Merits of the Board's Determination Regarding Increased Evaluations for Radiculopathy
Having explained that the Board had—and, by extension, that this Court has—jurisdiction
to address the proper evaluation for the bilateral lower extremity radiculopathy, we now move to
the merits of the Board's decision on these issues. Mr. Chavis's bilateral lower extremity
radiculopathy is currently evaluated under DC 8520. See R. at 11-12, see also 38 C.F.R. § 4.124a
(2020). Under that DC, a 10% evaluation is warranted for mild incomplete paralysis; a 20%
evaluation is warranted for moderate incomplete paralysis; a 40% evaluation is warranted for
moderately severe incomplete paralysis; a 60% evaluation is warranted for severe paralysis, with
marked muscular atrophy; and an 80% evaluation is warranted for complete paralysis. Id., DC
8520.
In its decision, the Board found that the criteria for a 20% evaluation, but no higher, were
met and awarded an increased evaluation for both legs. R. at 11-12. In reaching its determination,
the Board discussed the November 2017 VA examiner's opinion that the radiculopathy was
moderate in severity, R. at 11, then concluded that the evidence demonstrated that the
radiculopathy was moderate, R. at 12. The Board denied higher evaluations because the next higher
level of severity—moderately severe—was not present at any time during the appeal period. Id.As mentioned above, both parties agree that the Board failed to adequately explain its
determination that evaluations higher than 20% were not warranted. Appellant's Br. at 20-25;
Secretary's Br. at 18; see Secretary's Supp. Memo. at 16-17 (maintaining that, if the Court found
that the Board properly had jurisdiction, the Board's decision regarding the radiculopathy
evaluations should be set aside and remanded for inadequate reasons or bases).
The Court agrees. Notably, the Board failed to define the subjective terms contained in DC
8520. Without established benchmarks for those subjective terms, the Court is left without
standards upon which to review the Board's decision. See Johnson, 30 Vet.App. at 255 ("Without
19
a standard for comparing and assessing terms of degree, such conclusory findings are unreviewable
in this Court."); see also Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("The Board must
explain, in the context of the facts presented, the rating criteria used in determining the category
into which a claimant's symptoms fall; it is not sufficient to simply state that a claimant's degree
of impairment lies at a certain level without providing an adequate explanation.").
VA's Adjudication Procedures Manual provides benchmarks for mild, moderate,
moderately severe, and severe peripheral nerve conditions, see M21-1, III.iv.4.N.4.c, but the Board
did not discuss them. See Secretary's Br. at 18 (acknowledging the relevant M21-1 provision).
Although the Board is not bound by the M21-1, the standards provided in the M21-1 are "relevant
guidance promulgated for the purpose of facilitating the efficient and proper resolution of claims,"
which the Board must consider and address as part of its duty to provide a reasoned explanation
for its decision. Healey v. McDonough, No. 18-6970, 2021 WL 710847, *5-6 (Vet. App. Feb. 24,
2021); see Overton v. Wilkie, 30 Vet.App. 257, 264 (2018). Instead, the Board simply relied on
the November 2017 examiner's assessment that Mr. Chavis's radiculopathy was moderate in
severity, R. at 11-12; however, "the Board cannot uncritically adopt an examiner's assessment of
the veteran's level of disability as its own without reconciling that assessment with the other
evidence of record," Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019) (citing Gabrielson v. Brown,
7 Vet.App. 36, 40 (1994) (noting that a medical opinion is "only that, an opinion" providing
medical evidence)).
As the Board failed to provide context for subjective terms contained in the DC, the Court
agrees with the parties and concludes that the Board failed to provide adequate reasons or bases
for its decision. See Caluza, 7 Vet.App. at 506. The Board's failure in this respect prevents Mr.
Chavis from understanding the precise basis for its finding and frustrates judicial review. See
38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. Remand of these
issues is therefore warranted. See Tucker, 11 Vet.App. at 374 (holding that remand is warranted
"where the Board has . . . failed to provide an adequate statement of reasons or bases for its
determinations").
On remand, Mr. Chavis is free to submit, and the Board must consider, additional
arguments and evidence, including the arguments raised in his briefs to this Court. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order). The Court reminds the Board that "[a] remand is meant to entail a critical
20
examination of the justification for the [Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
After consideration of the parties' briefs and supplemental memoranda, oral arguments, the
record on appeal, and the governing law, those portions of the April 20, 2018, Board decision that
denied entitlement to an evaluation higher than 40% for a lumbar spine disability and denied
entitlement to evaluations higher than 20% for bilateral lower extremity radiculopathy are SET
ASIDE, and those matters are REMANDED for readjudication consistent with this decision.
MEREDITH, Judge, concurring in part, dissenting in part: I join the opinion except for
Part III, in which the majority concludes that the Board of Veterans' Appeals (Board) had, and this
Court in turn has, jurisdiction over the appropriate disability rating for bilateral radiculopathy.
Because the statutory framework and controlling caselaw require a Notice of Disagreement (NOD)
in order to place a matter into appellate status, it is my view that the Board erred in assuming
jurisdiction over that unappealed, downstream issue. As explained below, this jurisdictional
requirement was not satisfied by an NOD predating the award of secondary service connection for
radiculopathy, the need to file an NOD was not obviated by Note 1 to the General Rating Formula
for Diseases and Injuries of the Spine (General Rating Formula), and the Board did not acquire
jurisdiction under theories that the issue was reasonably raised or part and parcel of an increased
rating claim.19 I thus respectfully dissent from the majority's decision to remand this matter.
I. Background
Here, it is undisputed that the appellant filed a claim for an increased disability rating for
his service-connected lumbar spine condition in November 2008. Record (R.) at 3508. A VA
regional office (RO) in February 2009 increased his disability rating from 20% to 40%, R. at
3462-65, and he filed an NOD in November 2009 disputing the assigned rating for his low back
19
To be clear, I agree that VA had an obligation to adjudicate entitlement to benefits for the appellant's
neurological conditions associated with his lumbar spine condition. See Roberson v. Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001); Bailey v. Wilkie, 33 Vet.App. 188, 203 (2021). Where I differ from the majority is that I find no legal
basis to conclude that any matters addressed in that adjudication are automatically placed in appellate status without
an NOD addressing that decision.
21
condition, R. at 3439-40. After the RO continued the 40% rating in a Statement of the Case (SOC),
R. at 3397-417, the appellant perfected an appeal to the Board, R. at 3394. In February 2016, the
Board remanded the matter for further development, including an examination to "record the
[appellant's] reported symptoms of his lumbar spine disability" and "identify all neurological
manifestations of the . . . back disability." R. at 3014.
Following the requested examination, the RO in December 2017 issued (1) a Supplemental
SOC in which it continued the 40% rating for a low back strain, R. at 57-69; see R. at 53; and (2) a
rating decision in which it awarded service connection for bilateral lower extremity radiculopathy
"as related to the service-connected disability of low back strain" and assigned a 10% rating for
each extremity, R. at 51. In the January 2018 cover letter to the rating decision, the RO advised
the appellant that a Supplemental SOC "ha[d] been sent under separate cover," R. at 42, and that,
if he did not agree with the rating decision, he must "complete and return . . . the enclosed" NOD
form, R. at 44. Although the appellant did not submit an NOD in response, the Board in the April
2018 decision on appeal found that "the [appellant's] ratings for bilateral radiculopathy are part
and parcel of the claim for an increased rating for a lumbar spine disability" and thus "[took]
jurisdiction of such claims." R. at 3.
II. November 2009 Notice of Disagreement
At the time the appellant filed his NOD with the February 2009 RO decision that granted
benefits for a lumbar spine disability, applicable law provided that "[a]ppellate review will be
initiated by a[n NOD] and completed by a substantive appeal after a[n SOC] is furnished."
38 U.S.C. § 7105(a) (2009).20 "[A]n NOD relates to a specific 'adjudicative determination' on a
specific date." Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998). "Just as the Court's jurisdiction
is dependent on a jurisdiction-conferring NOD, the Board's jurisdiction, too, derives from a
claimant's NOD." Buckley v. West, 12 Vet.App. 76, 82 (1998); see Brannon v. West, 12 Vet.App.
32, 34-35 (1998).
Here, the appellant does not contend that he filed an NOD as to the January 2018 RO
decision awarding secondary service connection and 10% disability ratings for radiculopathy.
20
As a result of the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55,
§ 2(q), 131 Stat. 1105, 1111 (Aug. 23, 2017), this section now provides: "Appellate review shall be initiated by the
filing of a notice of disagreement in the form prescribed by the Secretary." 38 U.S.C. § 7105(a) (2021).
22
Rather, he avers that his November 2009 NOD encompassed disagreement with the RO's failure
to adjudicate entitlement to benefits for radiculopathy in February 2009, and thus the Board had
jurisdiction over the radiculopathy ratings in the decision on appeal. See Appellant's Supplemental
Memorandum (Supp. Memo.) of Law at 10-11. Although I agree that the 2009 NOD could
encompass disagreement with the RO's failure to award secondary service connection for
radiculopathy in February 2009, it could not have placed into appellate status the downstream issue
of the proper rating for radiculopathy—and thereby conferred on the Board jurisdiction over that
issue—because the RO did not consider the upstream issue of entitlement to benefits for
radiculopathy until January 2018, more than 8 years after the NOD was filed. See Grantham v.
Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) ("Because the first appeal concerned the rejection
of the logically up-stream element of service-connectedness, the appeal could not concern the
logically down-stream element of compensation level."); see also Ephraim v. Brown, 82 F.3d 399,
401 (Fed. Cir. 1996) ("[A] newly diagnosed disorder, whether or not medically related to a
previously diagnosed disorder, can not be the same claim when it has not been previously
considered."). In other words, in November 2009, there was no adjudicative determination as to
the disability ratings for radiculopathy with which the appellant could have disagreed.
III. General Rating Formula Note 1
In the alternative, the appellant contends that he did not need to file another NOD because
VA, by regulation, has made the appropriate rating for associated neurologic abnormalities part of
the underlying spine claim. In that regard, the parties agree that the language of Note (1) of the
General Rating Formula is clear that, when the evidence establishes that a neurological
complication is associated with a service-connected spine disability, that complication is to be
service connected not as part of the underlying spine disability, but separately, based on the criteria
in the Rating Schedule relevant to the particular neurological abnormality. See 38 C.F.R. § 4.71a,
General Rating Formula, Note 1; Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56,509,
56,510 (Sept. 4, 2002) (noting that "sensory or motor loss in [the] extremities are among the
neurologic impairments that most commonly result from disease or injury of the spine"); VA
ADJUDICATION PROCEDURES MANUAL, M-21, Pt. III, subpt. iv, ch. 4, § A.5.d ("Because spinal
disease can cause objective neurological abnormalities, onset of a neurological complication
represents medical progression or worsening of the spinal disease."); see also Appellant's Supp.
23
Memo. at 4; Secretary's Supp. Memo. at 6. In other words, there is no dispute that when VA
considers benefits for a spinal disability, it must also consider whether there are any associated
neurological complications and, if so, it must rate those complications separately.
Although the majority focuses on the effect of Note 1 in terms of the scope of the initial
claim, the question before the Court is whether—where VA grants benefits for an associated
neurological complication after the claimant has already filed an NOD as to a decision on an
increased rating for the underlying spine disability—the issue of the proper rating for the
associated neurological complication becomes part of the pending appeal of the rating assigned
for the underlying back condition simply by virtue of the already-filed NOD. Note 1 does not
resolve this question because it does not address appellate procedure or indicate whether disputes
concerning a separate grant of benefits for associated neurological abnormalities may be placed
into appellate status absent an NOD that postdates the grant. Thus, there is no basis for concluding
that Note 1 obviates the statutory requirement for placing an issue into appellate status: "Appellate
review will be initiated by a[n NOD] and completed by a substantive appeal after a[n SOC] is
furnished." 38 U.S.C. § 7105(a) (2009).
IV. Reasonably Raised Claims
The appellant further avers that, based on 38 C.F.R. § 3.155(d)(2) and VA's practice of
adjudicating reasonably raised claims, the radiculopathy ratings were part of the low back claim
that was before the Board. Appellant's Supp. Memo. at 6. And, in January 2021, he submitted
supplemental authority pursuant to Rule 30(b) of the Court's Rules of Practice and Procedure in
which he identified the Court's recent decision in Bailey, 33 Vet.App. at 188, as "relevant to [his]
argument . . . that the issue of entitlement to ratings for neurological impairments caused by the
back disability were part of his claim for the appropriate evaluation for the primary back
disability." Appellant's Supp. Authority at 2.
In Bailey, relating to reasonably raised claims for secondary service connection, the Court
held that "the text, history, and purpose of [38 C.F.R.] §§ 3.155(d)(2) and 3.160 indicate that VA
is required to develop and adjudicate related claims for secondary service connection for
disabilities that are reasonably raised during the adjudication of a formally initiated claim for the
proper evaluation for the primary service-connected disability." 33 Vet.App. at 203. The Court
determined that a claimant "need not file a separate, formal claim for secondary service
24
connection" for the reasonably raised disability, id. at 191, and that the RO decision on the
secondary disability in that case, issued while the appeal of the primary disability was pending,
"could not and did not divest the Board of jurisdiction over the veteran's initial appeal," id. at 204.
The Court in Bailey relied on Warren v. McDonald, in which there were two claim streams
that resulted from VA's erroneous conclusion that the appellant had withdrawn his appeal of his
claim for service connection for sleep apnea, originally denied in April 2009. 28 Vet.App. 214,
219 (2016). After VA made that erroneous conclusion, it construed a 2010 filing by the appellant
as a request to reopen his claim; the RO granted the request and awarded secondary service
connection for sleep apnea with an effective date in May 2010, and the appellant did not appeal.
Id. at 216. When the matter reached the Board in the first claim stream, the Board stated that the
appeal stemmed from the April 2009 RO decision but characterized the matter on appeal as the
proper effective date for the award of service connection for sleep apnea. Id. at 217. The Court
agreed with the appellant that the Board had mischaracterized the issue and that the matter before
the Board was the appeal of the April 2009 denial of service connection for sleep apnea. Id. at 220.
Notably, the Court explained that no appeal of the assigned effective date for secondary service
connection had been addressed at the RO level—that is, the RO had not issued an SOC in response
to an NOD as to that matter—and therefore the Board lacked jurisdiction over it. Id. at 221 (citing
Jarrell v. Nicholson, 20 Vet.App. 326, 330-32 (2006) (en banc)). The Court remanded the appeal
for the Board to "address the merits of the December 2008 claim." Id. at 221-22.
There were also two claim streams in Bailey: An appeal of a December 2015 rating
reduction for service-connected prostate cancer and a January 2019 claim for benefits for
lymphedema secondary to prostate cancer. 33 Vet.App. at 191-92. The Board, in March 2019,
determined that the rating reduction was proper and that the appellant's claimed lymphedema and
other prostate cancer residuals were not contemplated by the rating schedule for prostate cancer,
which the Board found contemplated only voiding dysfunction. Id. at 192. While the appeal of the
March 2019 Board decision was pending before this Court, the RO in July 2019 granted service
connection for right and left lower extremity lymphedema secondary to prostate cancer residuals,
with an effective date as of the date of the 2019 claim. Id. On appeal, the appellant argued that the
Board should have considered secondary service connection for his reasonably raised prostate
cancer residuals. Id. at 197. The Court rejected the Secretary's argument that those residuals were
25
not part of the claim stream related to the proper disability rating for prostate cancer because the
appellant had not filed formal claims for those conditions. Id. at 204.
The Court's decision was based on a VA regulation that requires the Agency to "adjudicate
entitlement to benefits for the claimed condition as well as entitlement to any additional benefits
for complications of the claimed condition." 38 C.F.R. § 3.155(d)(2) (2020); see Bailey,
33 Vet.App. at 200. Because the appellant's claimed residuals were reasonably raised by the record
during the pendency of the appeal of the proper rating for prostate cancer and no formal application
was required, the Court held that VA was "required . . . to recognize, develop, and adjudicate his
entitlement to secondary service connection" for complications of prostate cancer and that the
Board thus erred in failing to address those issues. Bailey, 33 Vet.App. at 203 (emphasis added).
The Court further concluded that the RO's subsequent grant of secondary service connection and
assignment of an effective date and disability rating for those residuals in the separate claim stream
"could not and did not divest the Board of jurisdiction" over the initial appeal. Id. at 204.
Accordingly, the Court remanded "[t]he reasonably raised claims for secondary service connection
. . . for further development . . . and adjudication," which would "preserve[] the possibility of an
earlier effective date" for the award of secondary service connection. Id. at 204-05.
On the other hand, the case now before the Court involves only a single claim stream: A
request for an increased rating for a service-connected lumbar spine disability. In the course of the
development and adjudication of that claim, associated neurological complications were
documented (i.e., were reasonably raised) and, in accordance with Note 1, rated as separate,
secondary disabilities under the appropriate diagnostic code. In other words, VA complied with
Bailey, as well as with the requirements of Note 1, by addressing entitlement to secondary service
connection for the reasonably raised complications of the appellant's lumbar spine condition.
Nothing in Warren or Bailey addresses what is necessary to place into appellate status
downstream elements once VA adjudicates a reasonably raised claim. Nor do those cases require
VA to necessarily construe an appeal related to the primary condition as including an appeal with
respect to the rating assigned for the secondary condition, particularly where benefits for the
secondary condition are granted in a separate decision to which the claimant does not file an
26
NOD.21 To the contrary, Warren explicitly concluded that the Board lacked jurisdiction over a
downstream element—the effective date for service connection—not addressed by the RO in the
same claim stream, and Bailey at least implicitly found that the rating and effective date for the
secondarily service-connected condition were not before the Board in its review of the proper
evaluation of the primary condition. See Bailey, 33 Vet.App. at 204; Warren, 28 Vet.App. at 221.
As a result, these cases do not compel or support the conclusion that the Board here had jurisdiction
over the downstream element of disability ratings for the secondarily service-connected condition.
V. Part and Parcel
The appellant also likens the procedural posture of his case to that of a matter involving a
total disability rating based on individual unemployability (TDIU), which the Court has held is
part and parcel of the underlying claim for benefits or for an increased rating and therefore need
not be appealed separately from the adjudication on the underlying condition(s). Appellant's Supp.
Memo. at 2-3, 7 (citing Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009); Harper v. Wilkie,
30 Vet.App. 356, 361 (2018); Rice v. Shinseki, 22 Vet.App. 447, 453 (2009) (per curiam)). He
argues that he, like a claimant seeking TDIU, is simply seeking an appropriate evaluation for the
overall level of disability related to his spine. Id. at 7. However, "a request for TDIU . . . is not a
separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a
disability or disabilities." Rice, 22 Vet.App. at 453; see Comer, 552 F.3d at 1367; Harper,
30 Vet.App. at 359. In other words, TDIU is another avenue through which a claimant may obtain
a 100% rating for a service-connected condition. See Norris v. West, 12 Vet.App. 413, 420-21
(1999) ("A TDIU rating is not a basis for an award of service connection. Rather, it is merely an
alternate way to obtain a total disability rating without being rated 100% disabled under the Rating
Schedule."). Accordingly, if the issue on appeal is the proper rating, VA must consider the
possibility of TDIU where there is evidence of unemployability. Rice, 22 Vet.App. at 453.
In contrast, unlike a matter involving TDIU, the appellant was not awarded a higher
disability rating for his spine condition because of a neurological complication; he was awarded a
21
Even assuming that the November 2009 NOD could serve to place the January 2018 rating decision into
appellate status, there is no indication that VA issued an SOC as to the ratings assigned for radiculopathy of the
bilateral lower extremities. See 38 U.S.C. § 7105(a) (2017) ("Appellate review will be initiated by a[n NOD] and
completed by a [S]ubstantive [A]ppeal after a[n SOC] is furnished."). Accordingly, even if the Board had jurisdiction
over that matter, it appears that remand for VA to issue an SOC would have been appropriate.
27
separate disability rating for the complication on a secondary basis. See 38 C.F.R. § 4.71a, General
Rating Formula for Diseases and Injuries of the Spine, Note 1; 67 Fed. Reg. at 56,510
(characterizing the gastrointestinal, genitourinary, and neurologic abnormalities as "disabilities"
that "stem from diseases and injuries of the spine"). Moreover, the Court in Harper distinguished
Grantham, which held that an NOD is required to place "elements of an application for benefits
that were not previously adjudicated" into appellate status, 30 Vet.App. at 361, explaining that
TDIU may be placed into appellate status by an NOD as to the rating for the service-connected
condition because it is part of a claim for an increased evaluation. Id. at 361-62. The appellant's
"part and parcel" argument, therefore, is unpersuasive. See Ross v. Shinseki, 21 Vet.App. 528, 532
(2008) (differentiating between TDIU and the incurrence of additional disabilities as a result of a
service-connected disability), aff'd sub nom. Ross v. Shinseki, 309 F. App'x 394 (Fed. Cir. 2009).
VI. Remedy
For these reasons, I would find that the Board committed legal error in concluding that it
had jurisdiction over the issue of the proper disability rating for radiculopathy and dismiss the
appeal of that part of the Board decision that denied entitlement to disability ratings in excess of
20% for bilateral lower extremity radiculopathy. As for the Board's grant of 20% disability ratings
for radiculopathy, although the Secretary requests that the Court vacate that part of the Board
decision as ultra vires, I would conclude that that matter is not properly before the Court. See
38 U.S.C. § 7252(a) ("The Secretary may not seek review of any [Board] decision."); Bond v.
Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) ("This Court's jurisdiction is confined
to the review of final Board . . . decisions which are adverse to a claimant.").
However, I also am compelled to note that the Board issued the decision on appeal on
April 20, 2018, only three-and-a-half months after the RO, on January 8, 2018, mailed to the
appellant notice of its decision granting benefits for radiculopathy of the bilateral lower extremities
and assigning 10% disability ratings for each leg. A legacy claimant has 1 year from the date on
which a decision is mailed to file an NOD, 38 U.S.C. § 7105(b)(1)(A); the Board's determination
that it had jurisdiction over the matter of the proper ratings for radiculopathy, despite the lack of
an NOD as to those matters, may have led the appellant to believe that he did not need to file an
28
NOD as to the January 2018 rating decision.22 Because the 1-year period to appeal the January
2018 rating decision has since passed, if the Court had dismissed his appeal of the Board's decision
denying entitlement to higher initial disability ratings for radiculopathy, that would, in my view,
raise a serious question as to what recourse should be available to the appellant. See 38 U.S.C.
§ 503(a), (b) (authorizing the Secretary to provide equitable relief); Bailey v. West, 160 F.3d 1360,
1365 (Fed. Cir. 1998) (en banc) (holding that equitable tolling may be justified if a veteran received
erroneous information from a VA employee that induced him or her to miss the filing deadline);
Chastain v. West, 13 Vet.App. 296, 299 (2000) (holding that there must be a cause-and-effect
relationship between the misinformation provided and the veteran's late filing), aff'd sub nom.
Chastain v. Principi, 6 F. App'x 854 (Fed. Cir. 2001) (per curiam).
22
In that regard, it is also noteworthy—and perhaps disconcerting—that, while this matter was on appeal to
the Court, the Secretary took three different positions as to the appropriate remedy regarding radiculopathy, initially
contending that the Board had jurisdiction and remand was warranted. See Secretary's Br. at 18 (asking the Court to
vacate and remand that part of the Board's decision that denied a rating higher than 20% for radiculopathy of each
lower extremity because the Board provided inadequate reasons or bases for its determination that higher ratings were
not warranted); Jan. 16, 2020, Notice of Clarification, at 2-3 (contending that the Board "technically did not have
jurisdiction" over radiculopathy but noting that the Secretary "does not now seek to disturb" the favorable grant of
20% ratings); Secretary's Supp. Memo. at 18-20 (arguing that the Board's award of a 20% rating for each bilateral
lower extremity was a nullity, not a favorable factual finding, and asking the Court to vacate that part of the Board's
decision and dismiss the appeal of that matter).
29