Gerard Cullen v. Eric K. Shinseki , 24 Vet. App. 74 ( 2010 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 08-1193
GERARD CULLEN , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued June 10, 2010 Decided August 13, 2010)
Landon Overby, with Robert V. Chisholm, both of Providence, Rhode Island, were on the
brief for the appellant.
Michael Carr, with Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General
Counsel; and Leslie C. Rogall, Deputy Assistant General Counsel, all of Washington, D.C., were on
the brief for the appellee.
Before HAGEL, MOORMAN, and DAVIS, Judges.
HAGEL, Judge: Gerard Cullen appeals through counsel a February 27, 2008, Board of
Veterans' Appeals (Board) decision denying entitlement to increased disability ratings for
(1) residuals of a shrapnel wound to the right shoulder and right side of back, and (2) degenerative
joint disease of the thoracic spine, each currently rated 20% disabling. The Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the February 2008 Board decision.
This matter was referred to panel to determine whether a claimant may be entitled to more
than one disability rating for the same condition under the same diagnostic code. We hold that he
may not. Because, however, the Board failed to provide an adequate statement of its reasons or
bases for concluding that Mr. Cullen was not entitled to an increased disability rating for his thoracic
spine condition due to additional limitations due to pain, weakness, or fatigue; and because the
Board's reasons or bases for its denial of entitlement to an increased disability rating for the residuals
of a shrapnel wound were also inadequate, the Court will vacate the February 2008 Board decision
and remand the matters for further development, if necessary, and readjudication consistent with this
decision.
I. FACTS
Mr. Cullen served on active duty in the U.S. Army from June 1966 to September 1968,
including service in Vietnam. In March 2003, he sought increased disability ratings for residuals of
a right shoulder shrapnel wound and for degenerative joint disease of the thoracic spine, each of
which had been rated 10% disabling.
In October 2004, Mr. Cullen underwent a VA muscles examination in connection with both
of his claims. With respect to Mr. Cullen's right shoulder and right side of his back, the examiner
reported:
The veteran has a limitation of the flexion and extension of the right shoulder to 60
degrees and 30 degrees. The abduction is limited to 120 degrees on the right
shoulder. Internal rotation 55 degrees, external rotation limited to 25 degrees. The
veteran can actively and passively move the joint. The veteran cannot move the joint
through gravity. The joint function of the right shoulder is limited by pain, fatigue,
weakness, and lack of endurance following repetitive use and also during the
flare-up.
Record (R.) at 241.1 Regarding Mr. Cullen's thoracic spine condition, the examiner reported:
The veteran has a loss of lumbar lordosis, and there is paravertebral muscle spasm
of the T4, T5, and T6 area. Forward flexion is restricted to 70 degrees with pain.
Backward extension he can do to only 20 degrees with pain. Left lateral flexion
produces pain at 20 degrees. Right lateral flexion produces pain at 15 degrees. The
right lateral rotation to the right and the left is 20 degrees with pain. The thoracic
spine is painful on motion, and there is additional limitation of the thoracic spine
with pain, fatigue, weakness, and lack of endurance following repetitive use and
during the flare-up. There is painful motion, spasm, and tenderness of the thoracic
spine. There is muscle spasm of the thoracic spine. Then, there is guarding of the
thoracic muscles and spine with abnormal spinal contour with a kyphosis of the
thoracic spine.
1
Flexion is "the act of bending or condition of being bent." D O RLAN D 'S I LLU STRATED M ED ICAL D ICTION ARY
725 (31st ed. 2007) [hereinafter D O RLAN D 'S ]. Extension is "the movement that straightens or increases the angle between
bones or parts of the body. Id. at 670. Abduction means "to draw away from the median plane." Id. at 2.
2
R. at 243. 2
In an April 2005 rating decision, a VA regional office increased the disability ratings for each
of Mr. Cullen's disabilities from 10% to 20%. Mr. Cullen disagreed with the ratings assigned via
a Notice of Disagreement in May 2005, and ultimately appealed to the Board in November 2005.
In February 2008, the Board issued the decision on appeal denying entitlement to increased
disability ratings. Regarding Mr. Cullen's thoracic spine disability, the Board discussed the criteria
contained in 38 C.F.R. § 4.71a, and concluded that the medical evidence supported only a 20%
rating. In this regard, the Board stated:
Considering limitation of motion, the competent medical evidence of record shows
that the veteran currently has forward flexion of the thoracolumbar spine limited to
70 degrees with pain and some additional limitation caused by pain, fatigue,
weakness and lack of endurance following repetitive use. The Board has considered
the applicability of DeLuca v. Brown, 8 Vet. App. 202, including whether there is a
basis for assigning a rating in excess of 20 percent due to additional limitation of
motion resulting from pain or functional loss. See 38 C.F.R. §§ 4.40 and 4.45. There
is no question in this case that pain is a component of the veteran's disability.
Nevertheless, the Board finds that the effects of pain reasonably shown to be due to
the veteran's service-connected degenerative joint disease of the thoracolumbar spine
are contemplated in the 20 percent rating currently assigned. The competent
evidence of record does not show that pain, fatigue, weakness and lack of endurance
following repetitive use causes forward flexion of the thoracolumbar spine to be
limited to 30 degrees or less or to be equivalent to favorable ankylosis.[3] See
38 C.F.R. § 4.40; DeLuca, supra. While repetitive motion reportedly added
additional limitation, the Board is of the opinion that even considering this additional
limitation as reported by the VA examiner the veteran's disability picture more nearly
approximates the criteria required for the 20 percent rating (forward flexion limited
to between 30 and 60 degrees). See 38 C.F.R. § 4.7 la, DC 5242. As such, an
evaluation in excess of 20 percent for degenerative joint disease of the thoracic spine
based on limitation of motion is not warranted. See id., see also 38 C.F.R. § 4.7 la.
2
Lordosis is "abnormally increased concavity in the curvature of the lumbar spinal column as viewed from the
side." D O RLAN D 'S at 1090. Paravertebral means "beside the vertebral column." Id. at 1403. T4, T5, and T6 indicate
the 4th, 5th, and 6th vertebrae of the thoracic spinal column. See http://visual.merriam-webster.com/
images/human-being/anatomy/skeleton/spinal-column.jpg (last visited June 11, 2010). Kyphosis is "abnormally
increased convexity in the curvature of the thoracic spinal column as viewed from the side." D O RLAN D 'S at 1007.
3
Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."
D O RLAN D 'S at 94.
3
R. at 19. Regarding Mr. Cullen's shoulder and back disability, the Board discussed the medical
evidence pertaining to the limitation of motion in his right shoulder but ultimately concluded that
the September 2004 VA examination supported only the current 20% rating. With respect to the
DeLuca factors, the Board's discussion was essentially the same as quoted above for the thoracic
spine disability.
On appeal, Mr. Cullen first argues that the Board erred in its interpretation of 38 C.F.R.
§ 4.71a.4 Specifically, he contends that a proper reading of the regulation required the Board to
award him both a 20% disability rating and a 40% disability rating for his thoracic spine condition.
He asserts that this is so because (1) the criteria are written in the disjunctive and are not duplicative
or overlapping, and they therefore serve as independent bases on which to assign a disability rating,
and (2) he suffers from symptoms included in the criteria for both a 20% and 40% disability rating.
Appellant's Brief (Br.) at 10-15. Mr. Cullen then argues that the Board incorrectly applied 38 C.F.R.
§ 4.71a, Diagnostic Code 5201, to determine that only a 20% disability rating was warranted for his
right shoulder and right side of back condition. Instead, he contends, the September 2004 VA
examination on which the Board relied in fact supports a 30% disability rating for that condition.5
Appellant's Br. at 15-18. He requests that the Court reverse the Board's decision and award a 20%
disability rating and a 40% disability rating for his thoracic spine condition, and a 30% disability
rating for his right shoulder and back condition, due to limited range of motion.
In response, the Secretary rejects Mr. Cullen's first argument as unsupported by regulations
and existing caselaw. However, the Secretary concedes that the Board's discussion of the effects of
pain on Mr. Cullen's function is not supported by adequate reasons or bases. Therefore, the Secretary
argues, remand, not reversal, is the appropriate remedy for each of Mr. Cullen's claims.
4
Section 4.71a provides a general rating formula for diseases and injuries of the spine. For a 20% disability
rating of the thoracic spine, the regulation requires "[f]orward flexion of the thoracolumbar spine greater than 30 degrees
but not greater than 60 degrees;" for a 40% disability rating of the thoracic spine, the regulation requires "forward flexion
of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine." 38 C.F.R.
§ 4.71a.
5
Diagnostic Code 5201 provides for a 30% disability rating where there is limitation of motion of the major
arm "[m]idway between side and shoulder level," and for a 20% disability rating where the limitation of motion is "[a]t
shoulder level." 38 C.F.R. § 4.71a, Diagnostic Code 5201.
4
II. ANALYSIS
A. Entitlement to Two Disability Ratings for One Condition
1. VA's Interpretation of 38 C.F.R. § 4.71a
A Board determination of the appropriate degree of disability under the rating code 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). However, here, the Court is asked to determine
whether the Secretary's interpretation of 38 C.F.R. § 4.71a (specifically, the rating formula for
diseases and injuries of the spine) as permitting the assignment of only one disability rating is proper,
a legal question that the Court reviews de novo. 38 U.S.C. § 7261(a)(1); see Smith v. Gober,
14 Vet.App. 227, 230 (2000). The regulation at issue in this matter is 38 C.F.R. § 4.71a, the rating
schedule for disabilities of the musculoskeletal system. Of particular concern to Mr. Cullen is the
"General Rating Formula for Diseases and Injuries of the Spine," which corresponds to Diagnostic
Codes 5235-5243 and provides the following:
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
Unfavorable ankylosis of the entire spine. . . . . . . . . . . . . . . . 100[% disability rating]
Unfavorable ankylosis of the entire thoracolumbar spine . . . . . . . . . . . . . . . . . . . . 50
Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the
thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire
thoracolumbar spine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of
the entire cervical spine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but
not greater than 30 degrees; or, the combined range of motion of the thoracolumbar
spine not greater than 120 degrees; or, the combined range of motion of the cervical
spine not greater than 170 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
Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but
5
not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine
greater than 120 degrees but not greater than 235 degrees; or, combined range of
motion of the cervical spine greater than 170 degrees but not greater than 335
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
percent or more of the height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
38 C.F.R. § 4.71a (2010).
Mr. Cullen contends that because the criteria for each spinal disability rating are written in
the disjunctive, the criteria provide "independent bases for establishing either a 20-percent or 40-
percent rating" for his thoracic spine disability. Appellant's Br. at 4. More precisely, Mr. Cullen
contends that, because he has symptoms that match one of the criteria necessary for a 20% disability
rating (muscle spasm or guarding severe enough to result in an abnormal spinal contour with
kyphosis) and one of the criteria necessary for a 40% disability rating (favorable ankylosis of the
entire thoracic spine), and because those criteria are not "duplicative or overlapping," he is entitled
to two disability ratings for his thoracic spine condition. Appellant's Br. at 5. Moreover, at oral
argument, Mr. Cullen asserted that the Secretary's interpretation of this portion of § 4.71a–that he
is entitled to only one disability rating for his thoracic spine condition–should be invalidated because
it is unreasonable.
VA rejects Mr. Cullen's interpretation of § 4.71a and argues that existing regulations and
caselaw make it clear that a claimant may be awarded only one disability rating for a particular
condition, absent express contrary authorization in the regulation. At oral argument, the Secretary
noted that this question had never been raised prior to Mr. Cullen's case, a fact that accounts for the
lack of VA General Counsel Precedent Opinions or other question-specific interpretation on the
matter. However, prior to oral argument, the Secretary submitted additional relevant authority,
specifically, the notice of proposed rulemaking to amend the portion of § 4.71a at issue in this case.
The Secretary argues that that document provides insight into his interpretation of the general rating
formula for diseases and injuries of the spine prior to the litigation of this case.
In Cathedral Candle Co. v. U.S. Int'l Trade Commission, the United States Court of Appeals
for the Federal Circuit (Federal Circuit) described the substantial level of deference generally
afforded to an agency's interpretation of its own regulation, noting that the interpretation is "'of
6
controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" 400 F.3d 1352,
1364 (Fed. Cir. 2005) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
Such generous deference is due even when the agency's interpretation is presented in a brief during
the litigation stage, as long as there is "'no reason to suspect that the interpretation does not reflect
the agency's fair and considered judgment on the matter in question.'" Id. (quoting Auer v. Robbins,
519 U.S. 452, 461-62 (1997) (noting that deference must be afforded to an agency's interpretation
of a regulation even where that interpretation is first advanced in a legal brief if that position
articulates a well established agency practice)).
The Court concludes that Mr. Cullen's argument, although creative, is not persuasive. The
language of the regulation, read as a whole, makes clear that the regulation prohibits multiple
disability ratings for a single spinal disability, except in certain circumstances. In note 1, the rating
specialist is specifically directed to evaluate particular symptoms, specifically, "associated objective
neurologic abnormalities," under the "appropriate diagnostic code." 38 C.F.R. § 4.71a, Diagnostic
Codes 5234-5243, note 1. This statement indicates that there are some circumstances under which
an additional disability rating for symptoms related to a spinal disability is warranted. Mr. Cullen
does not suggest that either of his claimed symptoms are neurologic abnormalities warranting an
additional disability rating. Similarly, note 6 states that when a claimant has disabilities of both the
cervical and thoracolumbar spine, the resulting disabilities are to be rated separately, i.e., may be
assigned separate disability ratings under the general rating formula.6 The implication of this
statement is that where a claimant's disability involves only the thoracolumbar spine, as Mr. Cullen's
does, he is entitled to only one disability rating for that condition.
Turning to VA's notice of proposed rulemaking, published in the Federal Register in
September 2002 (prior to the final rule's enactment in November 2003), the Court finds similar
support for the Secretary's position. VA proposed to amend VA's "Schedule for Rating Disabilities
by revising that portion of the Musculoskeletal System that addresses disabilities of the spine."
67 Fed. Reg. 56,506 (Sept. 4, 2002). VA stated that it intended to "revise the evaluation criteria for
rating disabilities of the spine by establishing a general rating formula that will apply to all diseases
6
The note provides an exception where there is "unfavorable ankylosis of both segments," in which case they
are to be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5234-5243, note 6.
7
and injuries of the spine." 67 Fed. Reg. at 56,510. VA explained its proposal to include note 1,
discussed above, stating that such direction to other diagnostic codes for evaluation of neurologic
abnormalities was necessary because the variety of neurologic abnormalities that might stem from
diseases and injuries of the spine made it impractical to include them in the proposed rating schedule,
which concerned only orthopedic limitations. This statement implies that separate disability ratings
would be available for some kinds of disabilities that stem from spinal disabilities (i.e., neurologic
disabilities), but that one disability rating would be assigned under the general rating formula for any
orthopedic limitations that arose.
VA also proposed 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. (emphasis added). This
statement directly supports the Secretary's argument that disability ratings are assigned based on a
"condition," rather than on any symptoms of a particular condition, which is essentially what Mr.
Cullen's argument boils down to. In fact, ankylosis of the thoracic spine is the basis for Mr. Cullen's
asserted entitlement to a separate 40% disability rating in this case. It is clear, however, that VA
intended to do away with separate disability ratings for ankylosis and instead rate spinal conditions
(i.e., disabilities) that include ankylosis as a symptom.
Additionally, VA proposed to eliminate the diagnostic code for lumbosacral strain "based
on pain, muscle spasm, limitation of motion, listing of the spine, loss of lateral motion with
osteoarthritic changes, etc." 67 Fed. Reg. at 56,512. VA stated that it would move lumbosacral
strain to Diagnostic Code 5237 (that is, within the general formula for rating disabilities or injuries
of the spine), "which would include criteria adequate for its evaluation." Id. Again, the fact that VA
eliminated a separate diagnostic code that could be based on muscle spasms (among other
symptoms7) and instead included muscle spasms as one of the criteria included in several of the
disability ratings for the spine demonstrates VA's intent to eliminate the possibility of assigning a
7
The general rating formula for the spine states that the formula will be applied "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."
38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243; see 68 Fed. Reg. 51,454 (Aug. 27, 2003).
8
separate disability for that symptom in addition to a disability rating for the overarching spinal
condition. VA's final rule, published in August 2003, confirms this:
Pain alone cannot be evaluated without being associated with an underlying
pathologic abnormality. In the case of spine disabilities, it would be rare for pain not
to be present. Pain is often the primary factor limiting motion, for example, and is
almost always present when there is muscle spasm. Therefore the evaluation criteria
provided are meant to encompass and take into account the presence of pain,
stiffness, or aching, which are generally present when there is a disability of the
spine.
68 Fed. Reg. at 51,454-55. Further: "[W]e developed evaluation criteria that are meant to take pain
and other symptoms into account. Therefore an evaluation based on pain alone would not be
appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the
neurologic sections of the rating schedule." 68 Fed. Reg. at 51,455.
These statements by VA, made long before the question arose before the Court, make clear
when a separate disability rating is warranted–for example in the case of neurologic abnormalities,
or when a claimant has both thoracic and cervical spine disabilities. These statements also make
clear VA's position that separate disability ratings are not to be assigned for different symptoms of
an underlying spinal condition, such as pain, ankylosis, or muscle spasms. The Court concludes that
VA's position is consistent both with the regulation itself and with VA's demonstrated interpretation
of the regulation and is therefore due substantial deference from the Court. See Auer, 519 U.S. at
461-62; Cathedral Candle Co., 400 F.3d at 1364. Mr. Cullen has not carried his burden of
demonstrating that the Secretary's interpretation or position is unreasonable. See Reizenstein v.
Shinseki, 583 F.3d 1331, 1336 (Fed. Cir. 2009) ("In order to defeat the VA's claim to deference, [the
appellant] must give us a 'reason to suspect that the interpretation does not reflect the agency's fair
and considered judgment on the matter in question.'" (quoting Cathedral Candle Co., 400 F.3d at
1364)).
2. Applicability of Other Regulations
Mr. Cullen's argument that he is entitled to two disability ratings for his thoracic spine
condition is also not supported by other regulations. Under 38 C.F.R. § 4.7, "Where there is a
question as to which of two evaluations shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria required for that rating. Otherwise, the
9
lower rating will be assigned." This regulation clearly indicates that only one disability rating per
diagnostic code may be assigned and that it will be based on the overall disability picture. Moreover,
the Federal Circuit has held that a veteran simply "cannot be compensated more than once for the
same disability." Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008); see 38 C.F.R. § 4.14 (2010)
("The evaluation of the same disability under various diagnoses is to be avoided.").
Mr. Cullen is correct that 38 C.F.R. § 4.25(b) entitles veterans to have "the disabilities arising
from a single disease entity . . . rated separately" (emphasis added) and the individual disability
ratings combined. However, he asks the Court to interpret that regulation as permitting separate
disability ratings to be based on individual symptoms of a disability, rather than on separate
disabilities. For example, Mr. Cullen would have the Court find that his individual symptoms
(favorable ankylosis of the entire thoracic spine and muscle spasm or guarding severe enough to
result in an abnormal spinal contour with kyphosis) are sufficient to assign two separate disability
ratings for the effects of one disabling condition (degenerative joint disease of the thoracic spine).
That is not permitted. See Boggs, 520 F.3d at 1337; cf. Bradley v. Peake, 22 Vet.App. 280, 290-91
(2008) (stating that § 4.25 requires that "all disabilities are to be rated separately" and noting few
exceptions to that rule (emphasis added)).
Mr. Cullen's suggestion at oral argument that the criteria of § 4.71a relating to the spine
would have been written in the conjunctive if separate disability ratings were not permitted for spinal
disabilities ignores the fact that the spine is made up of three distinct parts–the cervical spine, the
thoracic spine, and the lumbar spine–and that the disputed portion of § 4.71a is a "general" rating
formula for diseases and injuries of the spine. Accordingly, both the 20% and 40% disability ratings
provide criteria applicable to either the cervical spine or the thoracic spine. See 38 C.F.R. § 4.71a.8
If the criteria were written in the conjunctive, a claimant would have to show disabilities of both the
thoracic and cervical spines to establish entitlement to compensation. The Court is therefore not
persuaded by this argument.
8
The Court notes that, for rating purposes, § 4.71a combines the thoracic and lumbar spines and provides
criteria for rating disabilities of the "thoracolumbar spine."
10
3. Appellant's Reliance on Caselaw and VA General Counsel Precedent Opinion 9-2004
In several of the cases on which Mr. Cullen relies, discussed below, the Court found that the
Board erred in requiring a claimant to show each of the various symptoms listed in the rating
schedule for a particular disability rating for the claimant's alleged condition, when those criteria
were written in the disjunctive form. In Drosky v. Brown, for instance, the appellant was seeking
a 30% disability rating for rheumatic heart disease, and the criteria for that rating were
inactive rheumatic heart disease "[f]rom the termination of an established service
episode of rheumatic fever, or its subsequent recurrence, with cardiac manifestations,
during the episode or recurrence, for 3 years, or diastolic murmur with characteristic
EKG manifestations or definitely enlarged heart."
10 Vet.App. 251, 254 (1997) (quoting 38 C.F.R. § 4.104, Diagnostic Code 7000 (1996)) (emphasis
added). There, the Secretary conceded, and the Court agreed, that the Board had erred by requiring
that the veteran have both a diastolic murmur with EKG manifestations and a definitely enlarged
heart to qualify for a 30% disability rating. Id. at 255. Similarly, in Johnson v. Brown, the Court
found that the Board had erred in requiring a claimant to satisfy all of the disjunctively written
criteria in 38 C.F.R. § 4.132 (1994) for a 100% disability rating for post-traumatic stress disorder.
7 Vet.App. 95, 99 (1994) ("[U]pon remand the Board shall determine whether the appellant's [post-
traumatic stress disorder] disability meets any one of the three independent criteria required for a
100% [post-traumatic stress disorder] rating. If the Board determines that one of the criteria is met,
it shall award a 100% rating." (emphasis added)). These cases establish that disjunctive criteria for
a particular disability rating are independent bases on which to assign a single particular disability
rating. Neither case supports the interpretation of the assignment of disability ratings that Mr. Cullen
puts forth.
Mr. Cullen's reliance on Esteban v. Brown, 6 Vet.App. 259 (1994), is similarly misplaced.
The Court's holding in Esteban, that the "critical element" of whether separate disability ratings are
permitted is whether the symptomatology of each rating is "distinct and separate," 6 Vet.App. at 262,
cannot be divorced from the context of that case. In Esteban, the appellant had four scars on his face
as a result of a vehicle accident in service and had been assigned a 10% disability rating under
38 C.F.R. § 4.118, Diagnostic Code 7800 (1993) (disfiguring scars). The Board determined that the
appellant's scars might also have been properly evaluated under two additional diagnostic codes,
11
7804 (painful scars) or 5325 (facial muscle injury), but determined that the appellant was entitled
to only one 10% disability rating, not three separate 10% disability ratings (to be combined under
§ 4.25), because "'the evidence of record shows that the residual of an injury to the right side of the
veteran's face is compatible with, but does not meet[,] any of the schedular criteria for a rating higher
than 10 percent.'" 6 Vet.App. at 260. The Court, however, found:
The condition embodied in a rating under [Diagnostic Code] 7800 is entirely
cosmetic in nature. Such rating does not contain any component of pain or muscle
damage. The critical element is that none of the symptomatology for any one of these
three conditions is duplicative of or overlapping with the symptomatology of the
other two conditions. Appellant's symptomatology is distinct and separate . . . . Thus,
as a matter of law, appellant is entitled to combine his 10% rating for disfigurement
under [Diagnostic Code] 7800 with an additional 10% rating for tender and painful
scars under [Diagnostic Code 7804] and a third 10% rating for facial muscle injury
interfering with mastication under [Diagnostic Code] 5325.
Id. at 261-62. Esteban, a case involving three separate "conditions" or disabilities–as emphasized
by the assignment of three separate disability ratings under three separate diagnostic codes–is easily
distinguishable from Mr. Cullen's case, in which he seeks two separate disability ratings for the same
condition or disability–degenerative joint disease of the thoracic spine–under one diagnostic code.
The Court is not persuaded that Esteban can be fairly read to support Mr. Cullen's argument.
Similarly, the Court also finds Mr. Cullen's reliance on VA General Counsel Precedent
Opinion 9-2004 misplaced. That opinion addressed whether a veteran can receive separate disability
ratings under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 (leg, limitation of flexion) and 5261 (leg,
limitation of extension) for the same joint. VA General Counsel determined that, in some
circumstances, separate disability ratings could be assigned (and combined under § 4.25) without
constituting pyramiding, which is prohibited by § 4.14. The General Counsel stated:
[T]he key consideration in determining whether rating under more than one
diagnostic code is in order is whether the ratings under different diagnostic codes
would be based on the same manifestation of disability or whether none of the
symptomatology upon which the separate ratings would be based is duplicative or
overlapping.
VA Gen. Coun. Prec. 9-2004 (Sep. 17, 2004) (emphasis added). As in Esteban, the key difference
between the question the General Counsel was asked to resolve and Mr. Cullen's case is that the
12
General Counsel was asked to determine when separate disability ratings under two particular,
different diagnostic codes is proper, not whether separate disability ratings can be assigned under
the same diagnostic code. Accordingly, the Court rejects Mr. Cullen's argument on this issue.9
4. Summary
We hold that, within a particular diagnostic code, a claimant is not entitled to more than one
disability rating for a single disability unless the regulation expressly provides otherwise. To find
otherwise would permit absurd results–compensation twice for the same condition–and not only in
the case of diseases and injuries of the spine. For example, under 38 C.F.R. § 4.97, the rating
schedule for disabilities of the respiratory system, Diagnostic Code 6846 (sarcoidosis) contains
disjunctive criteria that are not "duplicative or overlapping," such that a claimant who had both
pulmonary and cardiac involvement would be entitled to both a 60% and a 100% disability rating
for the same condition under Mr. Cullen's interpretation. Similarly, under 38 C.F.R. § 4.119 (2010),
the rating schedule for disabilities of the endocrine system, a 10% disability rating can be awarded
under numerous diagnostic codes when continuous medication is required for control, but that
requirement does not appear in the criteria for any of the higher disability ratings. According to Mr.
Cullen's logic, a claimant who suffered from, for example, hyperthyroidism and required continuous
medication to control that condition but who also experienced tachycardia, tremor, and increased
pulse or blood pressure related to or caused by that condition would be entitled to both a 10%
disability rating based on the need for medication and a 30% disability rating for the other
symptoms. See 38 C.F.R. § 4.119, Diagnostic Code 7900. As discussed above, this is simply not
contemplated by the rating schedule.
B. Reasons or Bases
In his brief, and at oral argument, the Secretary conceded that the Board's reasons or bases
for denying Mr. Cullen's claims were inadequate. In rendering its decision, the Board is required to
provide a written statement of the reasons or bases for its "findings and conclusions[] on all material
issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be
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If Mr. Cullen believes that the current disability rating assigned does not adequately compensate him for the
practical effects of his disability, the proper recourse is to seek extraschedular consideration. See 38 C.F.R. § 3.321(b)(1)
(2010).
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adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to
facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
In DeLuca v. Brown, the Court held that 38 C.F.R § 4.40 requires that the disabling effect
of painful motion be considered when rating joint disabilities. 8 Vet.App. 202, 205-06 (1995).
Pursuant to § 4.40, a "[d]isability of the musculoskeletal system is primarily the inability, due to
damage or infection in parts of the system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and endurance." Further, under § 4.40,
functional loss "may be due to pain, supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion,
and a part which becomes painful on use must be regarded as seriously disabled." With regard to
the joints, 38 C.F.R. § 4.45 provides that "the factors of disability reside in reductions of their normal
excursion of movements in different planes." When rating disabilities of joints, including the spine,
the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or
fatigue. DeLuca, 8 Vet.App. at 205-06.
1. Thoracic Spine
Here, the Board's discussion of the effects of pain, weakness, or fatigue is conclusory and
without supporting rationale:
There is no question in this case that pain is a component of the veteran's disability.
Nevertheless, the Board finds that the effects of pain reasonably shown to be due to
the veteran's service-connected degenerative joint disease of the thoracolumbar spine
are contemplated in the 20 percent rating currently assigned. The competent
evidence of record does not show that pain, fatigue, weakness and lack of endurance
following repetitive use causes forward flexion of the thoracolumbar spine to be
limited to 30 degrees or less or to be equivalent to favorable ankylosis. While
repetitive motion reportedly added additional limitation, the Board is of the opinion
that even considering this additional limitation as reported by the VA examiner the
veteran's disability picture more nearly approximates the criteria required for the 20
percent rating (forward flexion limited to between 30 and 60 degrees).
R. at 19 (citations omitted). This explanation tacitly acknowledges that the September 2004 VA
examiner determined that Mr. Cullen's "thoracic spine [wa]s painful on motion, and there [wa]s
additional limitation of the thoracic spine with pain, fatigue, weakness, and lack of endurance
following repetitive use and during the flare-up." R. at 243. The Court, however, perceives two
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problems with the physician's statement: First, that statement is less than helpful to the Board in
reaching a conclusion on this issue because it lacks any specifics regarding the effects of the
additional limitation of motion of the spine. Second, despite this shortcoming, not only did the
Board opt to rely on such a conclusory statement, but also the Board failed to explain its conclusion
any more thoroughly than did the VA examiner. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.2 (2010)
(stating that if an examination report does not contain sufficient detail, "it is incumbent upon the
rating board to return the report as inadequate for evaluation purposes"); see also Bowling v.
Principi, 15 Vet.App. 1, 12 (2001) (emphasizing Board's duty to return inadequate examination
report). Accordingly, the Court's ability to review the Board's decision on this claim has been
frustrated, and vactur and remand is necessary. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
(holding that remand is warranted where the Board's reasons or bases are inadequate). On remand,
the Board should seek clarification and a more specific description from the VA examiner regarding
the extent of the additional limitations Mr. Cullen experiences due to pain, weakness, and fatigue–or
provide a new, thorough medical examination–and readjudicate Mr. Cullen's claim.
To the extent that Mr. Cullen contends that the Board erred in not assigning a single 40%
disability rating for his thoracic spine condition, the Court need not address that argument at this
time. Because the Court has determined that vacatur and remand is warranted for this claim, the
Board will be required to readjudicate Mr. Cullen's claim and provide a new statement of reasons
or bases for its decision, which will necessarily include a discussion of whether a 40% disability
rating is warranted. 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, should the Board rule against
him.").
2. Residuals of Shrapnel Wound
Here, the Board's discussion of the additional limitations due to pain, weakness, or fatigue
is very similar to that contained in its discussion of Mr. Cullen's claim for benefits for a thoracic
spine condition. The Board wrote:
There is no question in this case that pain is a component of the veteran's disability.
Nevertheless, the Board finds that the effects of pain reasonably shown to be due to
the veteran's service-connected residuals of shrapnel wound to the right shoulder and
15
right side of back are contemplated in the 20 percent rating currently assigned. While
the September 2004 VA examiner reported that pain, fatigue, weakness, and lack of
endurance following repetitive use resulted in inability to lift objects with the right
shoulder, taking this into consideration, the Board is still of the opinion the overall
disability picture more nearly approximates moderately severe disability of muscle
group XX, as opposed to severe. The additional limitation resulting from pain and
functional loss also still more nearly approximates limitation of the arm to shoulder
level, as opposed to midway between side and shoulder level.
R. at 12-13 (citations omitted).
The Court perceives two problems with this explanation as well: First, the Board's statement
that the additional functional limitation more nearly approximates a moderately severe disability is
conclusory and unsupported by any further explanation. Second, as the Secretary concedes, the
Board did not address the fact that the September 2004 VA examination found that Mr. Cullen's
flexion of the right arm/shoulder was limited to 60 degrees, which appears to support Mr. Cullen's
assertion that his disability limits the range of motion of his right arm to midway between his side
and his shoulder and therefore entitles him to a 30% disability rating. See R. at 241; 38 C.F.R.
§ 4.71a, Diagnostic Code 5201; Secretary's Br. at 10-11. The Court therefore concludes that the
Board's reasons or bases for denying entitlement to an increased disability rating for this condition
are inadequate, and vacatur and remand is required so that the Board can adequately explain its
conclusions or conduct further development to obtain the information and evidence necessary to
adjudicate Mr. Cullen's claims. See Tucker, 11 Vet.App. at 374.
On remand, Mr. Cullen is free to submit additional evidence and argument with respect to
both of his claims, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that
"[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the February 27, 2008, Board decision is VACATED
and the matters are REMANDED for readjudication consistent with this decision.
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