[Requirements For Live Pension Ratings]

Requirements for Live Pension Ratings

http://www.warms.vba.va.gov/admin21/m21_1/...1/ch01_seca.doc

[Amc Says My Claim Is Gone To Be Rated?]

My claim went to ready to rate, June 22, 06 this last time. The remand before, it sat in ready to rate status, for over a yr at the AMC in DC.

Allan

[Abstract - Prevalence And Characteristics Of Chronic Pain In Veterans With Spinal Cord Injury]

so condisering I have several herniated disc in my cervical spine and take enough narcs to kill a average man how does this help my claim?

Hello Betrayed, this was intended as a health issue. Not sure how it can apply to your claim. Ongoing studies of patients with spinal cord pain is what I get out of it.

Did I post this in claims too?

Allan

[(tbi) Traumatic Brain Injury & Va]

Hello Steve,

I see you found us ok. Welcome to hadit.com

Your records that you submitted to VA?

Did they include your clinical records, Lab reports & radiology?

MRI's? Were brain lesions noted? Were they in the white matter? Any lesions in the corpus callusom?

Your labs?...did they have any high markers? Thyroid check out ok?

You may have some visual problems develop from TBI such as, blurred vision, double vision & loss of vision or nystagmus. Carefully check all your service medical records(SMR's) over. Anything out of place, discuss it with your doctors now.

Health records for secondary claims, should also be submitted, such as a psychologist statement explaining the effects of medication on your daily life.

Are they trying too screw me over for less compensation? There sure is a good chance of it.

Should you trust the VA?... NO!!!!

Should you trust the NSO's?......NO!!!!

Should you believe, "oh, were going to get right on this & take care of you? ...NO!!!!!

THERE IS NO SUCH THING AS EXPEDITE, in doing business with the VA.

Make multiple copies of the claim you submit.......theres a good chance it will be lost in the round file & you'll need to resubmit it.

Don't expect anyone working your claim at the VA or VAMC, to know what their doing. Some do, but not very many.

The 1-800-827-1000 number for VA? You can't believe anything they tell you. That includes, if they ever say anything besides,"theres a claims backlog you know."

"Ready to rate", or "Weddy to Wait", as I call it. Means its sitting somewhere collecting dust.

Expect to be monitored, recorded & highly observed whenever you go for a health care visit. Anything can & will be used against you. It is best to have a witness with you taking notes during examinations.

You have the right to request a local hearing with the VA regional office to discuss your evidence in person with someone.

Keep copies of everything & keep a log of phone contacts.

Your goal is to collect benefits you've earned. Their goal, Is to prevent you from seceding as much as possible.

Watch your 6 steve!

Allan

I

[Subject: Democrats Reject Health Care Fees For Vets]

fwd from: Colonel Dan

Subject: Democrats reject health care fees for vets

http://www.armytimes.com/news/

<http://www.armytimes.com/news/2007/03/TNSvabudget070302/>

2007/03/TNSvabudget070302/

<http://www.armytimes.com/news/2007/03/TNSvabudget070302/>

Democrats reject health care fees for vets

By Rick

<mailto:rmaze@atpco.com%3Fsubject=Question%20from%20ArmyTimes.com%20reader>

Maze - Staff writer

Friday Mar 2, 2007 12:04:24 EST

Democrats who control the House and Senate veterans' affairs committees

have rejected the Bush administration's call for new enrollment fees and

higher drug co-payments for some veterans and have proposed bigger budgets

for health care.In the Senate, Daniel Akaka, D-Hawaii, the veterans'

committee chairman, and his fellow Democrats are asking for a $2.9 billion

increase over the Bush budget proposal for the Department of Veterans

Affairs, specifically for medical care.

The Bush administration had requested $39.4 billion for the VA for

nonbenefits items, including $34.6 billion for health care-related costs."We

believe that this is the amount necessary to treat all eligible veterans and

maintain the quality of VA medical services through the upcoming fiscal

year," Akaka said in a statement.

Specifically, Democrats and Sen. Bernard Sanders, I-Vermont, who also serves

on the Senate committee, have asked for an additional $300 million for

treatment of traumatic brain injuries, $357 million specifically for the

health care of Iraq and Afghanistan war veterans, and $693 million more for

mental health programs.

In the House, Bob Filner, D-Calif., the veterans' committee chairman, and

his Democratic colleagues are recommending a $1.3 billion increase in the

2008 veterans' health care budget, and also are asking for $5 billion for

veterans' programs to be put into the 2007 wartime supplemental funding

bill.

Filner said in an interview that the $3 billion would be to pay for a

post-traumatic stress disorder initiative, $1 billion would be for traumatic

brain injury and polytrauma care, $500 million would be to try to eliminate,

"once and for all," the backlog of pending benefits claims and $500 million

would be to pay for GI Bill improvements.House Democratic leaders have not

signed off on putting $5 billion for veterans in the supplemental

appropriations bill, but in a March 1 letter, Filner told them this should

be a priority.

"I believe that a storm is brewing across the country, a storm of discontent

regarding our treatment of veterans, and we must act now and act quickly,"

Filner wrote.In an interview, Filner said his appeal is simple: "If we can

fund the war, we must fund the warriors."Democrats on both committees have

rejected Bush administration proposals to increase out-of-pocket costs for

priority seven and eight veterans, those with moderate incomes who do not

have service-connected disabilities.

One rejected proposal would have increased the current $8 charge for

prescription drugs to $15. A second proposal involved charging enrollment

fees of as high as $750 a year, based on family income.The funding requests

are being made in letters to the House and Senate budget committees, which

are required to draw up an overall federal spending plan.

The budget committees are supposed to prepare budget plans for approval by

April 15, although that deadline is rarely met.Filner said he knows that the

$1.3 billion increase in medical care spending is less than the amount

sought by veterans' service organizations, but Democratic leaders have

stressed the need to hold down costs.

The $5 billion in supplemental spending would make up for a reduced 2008

budget, he said.It was not just Democrats who opposed the fees and who want

more money for veterans. Rep. Steve Buyer, R-Ind., the former House

veterans' committee chairman and now ranking Republican, also rejected the

fee increases in his budget recommendations.

Buyer and fellow Republicans on the committee recommended a $2.9 billion

increase in administration's VA budget plan, including $1.5 billion to

improve the GI Bill for National Guard and Reserve members.In a statement,

Buyer said the increases are aimed at what he sees as "enduring priorities"

- caring for disabled veterans, the indigent, providing a seamless

transition to civilian life, and giving veterans "every opportunity to live

full, healthy lives.

"That is an area where they all seem to agree. Akaka said, "It is important

for both Congress and the administration to realize that meeting the needs

of our veterans is an ongoing cost of war. Our nations' veterans deserve

timely benefits and quality medical care.

We can provide no less."A budget letter from Sen. Larry Craig, R-Idaho, the

former chairman and now ranking minority party member on the Senate

Veterans' Affairs committee, was not available for comment, but Craig has

been one of the few lawmakers to support the idea of charging fees - which

he refers to as premiums - and he is expected to endorse the

administration's proposal for enrollment fees.

----------------------------------------------------------

Contributed,

YNCS Don Harribine, USN(ret)

[Mayhew V. Principi]

00-1410

Mayhew.410.wpd

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Search Terms: CHRONIC PAIN

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Designated for

electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 00-1410

Isaac Mayhew, Jr., Appellant,

v.

Anthony J. Principi,

Secretary of Veterans Affairs, Appellee.

Before KRAMER, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

KRAMER, Chief Judge: The appellant, Isaac Mayhew, Jr., appeals

through counsel a July 12, 2000, Board of Veterans' Appeals (Board or BVA

) decision that denied his claim for an increased rating for his service-

connected sacroiliac sprain with lumbar degenerative arthritis and

spondylolisthesis. The appellant and the Secretary have filed briefs, and

the appellant has filed a reply brief. This appeal is timely, and the

Court has jurisdiction pursuant to 38 U.S.C. 7252(a) and 7266(a).

Single-judge disposition is appropriate when, as here, the issue is of

relative simplicity and the outcome is not reasonably debatable. See

Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that

follow, the Court will vacate the July 2000 Board decision and remand the

matter.

I. FACTS

The appellant served on active duty in the U.S. Army from February

1943 to November 1945. Record (R.) at 19-20. His service medical records

reflect that he injured his back in December 1944 "when he picked up a

jeep" (R. at 33), and his November 1945 separation examination report

reveals a diagnosis of "chronic lumbo-sacral strain" (R. at 38). In

April 1946, the appellant was awarded

service connection for a sacroiliac strain rated 10% disabling. R.

at 159-60. In 1974, that rating was increased to 20%. See R. at 4.

The report from a March 1992 VA examination reflects that the

appellant's forward flexion was 35 degrees, his backward extension was "

limited to about a -5 degrees from forward flexion," his left lateral

flexion was 15 degrees, his right lateral flexion was 10 degrees, his

rotation to the left was 80 degrees, and his rotation to the right was 50

degrees; the diagnosis was "degenerative arthritis with spondylolisthesis

lumbar spine." R. at 410. Thereafter, in a May 1992 decision, a VA

regional office (RO) recharacterized the appellant's service-connected

back condition as sacroiliac sprain with lumbar degenerative arthritis and

spondylolisthesis and "assign[ed a] 40% evaluation under [38 C.F.R. 4.

71a, Diagnostic Code (DC)] 5292." R. at 417. The RO concluded that "

there ha[d] been [an] increased level of disability of [the] lumbar spine

not shown on x-ray findings" and that "[t]here [wa]s [an] actual increase

in the clinical symptomatology displayed and was not considered to be

severe limitation of motion." Id. The appellant filed a Notice of

Disagreement (NOD) with respect to that decision (R. at 420), and the RO

issued a Statement of the Case (SOC) (R. at 424-28). The report from

an August 1993 VA special orthopedic examination reveals that the

appellant's forward flexion was 45 degrees, his extension was 15 degrees,

his right and left lateral flexion were 35 degrees, and his rotation to

the right and left was 30 degrees; the examiner opined that "[r]ange of

motion of the lumbar spine [wa]s affected by the [appellant's] enlarged

fat abdomen." R. at 435. The diagnosis was "spondylolisthesis, L4-5

with narrowing and mild degenerative joint disease and mild degenerative

joint disease involving L3-4." R. at 437. In October 1993, the RO

notified the appellant that, based on the August 1993 examination, "it ha[

d] been determined that [his] service-connected disability ha[d] improved"

and that it was therefore proposing to decrease his disability rating to

20%. R. at 440. The appellant then submitted a medical examination

report dated in December 1993 from a private physician, Dr. Jerome Jones;

it reflects a conclusion that "the [appellant's] pain and disability from

his low back condition [were] getting worse." R. at 456. Dr. Jones

diagnosed the appellant with "severe lumbosacral arthritis with right

radicular pain." R. at 458. In a December 1993 decision, the RO reduced

the appellant's rating for his service-connected back injury from 40% to

20%, effective March 1, 1994. R. at 451. The appellant filed an NOD as

to that decision (R. at 469), an SOC was issued (R. at 473-79), and the

appellant filed a Substantive

Appeal (R. at 482). The appellant then submitted a statement from a

private chiropractor, Grady L. Carter, who opined that "[the appellant wa]

s genuine with respect to his subjective complaints, which [were]

consistent with the object exam[ination] and x-ray findings" and that "[t]

he degenerative processes that occur from an injury such as the one

suffered by [the appellant] do not improve." R. at 486. The report from

a June 1996 VA orthopedic examination reflects that the appellant's

forward flexion was 50 degrees, his extension was 20 degrees, his lateral

flexion was 15 degrees, and his rotation was 20 degrees; the diagnosis was

"[d]egenerative disc disease and degenerative arthritis, lumbar spine."

R. at 491. In July 1996, the RO issued a Supplemental SOC; the RO

concluded that the reduction to 20% was proper because "[f]indings [were]

consistent with the 20[%] evaluation presently assigned based on moderate

limitation of motion and moderate symptoms associated with intervertebral

disc syndrome" and that "[a] higher evaluation [could not] be assigned

. . . in the absence of severe symptoms associated with intervertebral

disc syndrome or severe symptoms associated with lumbosacral strain." R.

at 501. The appellant subsequently filed a Substantive Appeal. R. at 503

. In September 1997, he was afforded a hearing before the BVA; he

testified that his back pain was getting worse and that "the pains don't

go away." R. at 521. He also submitted additional statements from Dr.

Jones and chiropractor Carter; Dr. Jones opined that "[the appellant's]

current condition is in all medical probability secondary to the injury

that occurred while he was in the military" and that "[the appellant's]

back pain ha[d] been progressive." R. at 532. Carter opined that "[t]he

permanent injury resulting from the jeep accident will continue to

deteriorate causing more frequent care and increased symptoms each year."

R. at 533.

In a February 1998 decision, the Board denied restoration of a 40%

disability rating and remanded the claim for entitlement to a rating in

excess of 20%. R. at 538, 548-50. The Board ordered further development

including an orthopedic examination to determine the effect, if any, of

the appellant's pain on the function and movement of his lumbar spine and

to ascertain whether the appellant lost additional motion due to pain. R.

at 548-49.

The report from an April 1998 VA compensation and pension examination

reflects, inter alia, that (1) the appellant could forward flex to 30

degrees before he complained of pain; (2) lumbar spinal extension was

limited to less than 5 degrees before he complained of pain; and (3) left

and right lateral bending were limited to less than 10 degrees before he

complained of pain. R. at 559.

The examiner also noted that the appellant "suffers from a long history

of low back pain." R. at 558- 59. VA subsequently ordered another

examination because the April 1998 examination report "[did] not reveal

the extent of the [appellant's] range of motion, only when [he] start[ed]

to feel pain." R. at 556. In June 1999, the appellant underwent another

VA compensation and pension examination; the report reflects, inter alia,

that

when an attempt was made to determine the range of motion about his

lumbar spine the [appellant] . . . forward flex[ed] approximately 20-30

degrees and stopped[,] complaining of pain. When it was pointed out to him

on the [r]emand that his range of motion was given only to the point where

he felt pain he then proceeded to forward flex to 90 degrees. His lateral

bending was 30 degrees to each side and extension was 15 degrees.

R. at 574. The examiner opined that "[t]he patient would have you

believe that he is more disabled than he actually is" and concluded that "

this patient does have some stiffness in his lumbar spine due to his age

and obesity and probably does feel some discomfort and tightness . . . but

I cannot call this pain." R. at 575.

In the July 2000 decision on appeal, the Board denied the appellant's

claim for an increased rating for his service-connected back condition.

The Board initially noted that, under DC 5292, moderate limitation of

motion of the lumbar spine warrants a 20% rating while a 40% rating is

reserved for severe limitation of motion of the lumbar spine. R. at 10.

The Board then referred to the VA Physician's Guide for Disability

Evaluation Examinations (Guide); the Board noted that the Guide "provides

that normal range of motion of the lumbar spine is forward flexion to 95

degrees, backward extension to 35 degrees, lateral flexion to 40 degrees,

and rotation to 35 degrees." R. at 10. The Board opined that the fact

that the appellant's back disability was rated 20% disabling from 1974 to

1992 "provides very strong evidence that [his] service-connected back

disability had stabilized at a 20[%] disability level." R. at 11. The

Board concluded that the evidence shows "some limitation of motion of the

lumbar spine and some pain on motion" and that "the [then-]recent VA

medical evidence clearly reveal[ed] that the [appellant's] lumbar spine

arthritis is not so much a result of his back injury over half a century

ago, but rather a result of his age and obesity." R. at 12.

Next, the Board acknowledged, inter alia, that it "ha[d] to consider

the 'functional loss' of a musculoskeletal disability under 38 C.F.R. 4.

40 (1999), separate from any consideration of the [appellant's] disability

under the [DCs]." R. at 13. The Board also cited to and quoted, inter

alia, 38 C.F.R. 4.45(f), which provides regarding joints that, inquiry

must be directed toward, inter alia, "pain on movement." R. at 13-14.

The Board then concluded that "[t]he appellant's complaints of discomfort

and pain have been considered and have been taken into account in the

assignment of the 20[%] evaluation for his service-connected . . .

disorder." R. at 15. The Board reasoned that "in Sanchez-Benitez v. West

, [13 Vet.App. 282 (1999),] the Board discussed the veteran's disability

and stated that the 'nature of the original injury has been reviewed and

the functional impairment that can be attributed to pain or weakness has

been taken into account.'" R. at 16. In that regard, the Board noted

that "[t]he [C]ourt held that 'this discussion by the Board, with direct

citation to sections 4.40 and 4.45, satisfies any obligation of the BVA to

consider these regulations while rating the appellant's' disability" and

concluded that "[t]herefore, the Board states that in the present case the

nature of the original injury has been reviewed and the functional

impairment that can be attributed to pain or weakness has been taken into

account." Id.

On appeal, the appellant argues, inter alia, that the Board failed

to provide an adequate statement of reasons or bases for its decision that

a rating higher than 20% is not warranted. Appellant's Brief (Br.) at 13-

14. Specifically, the appellant avers that the Board merely recited the

applicable regulations and concluded that "'[t]he appellant's complaints

of discomfort and pain have been considered and have been taken into

account in the assignment of the 20[%] evaluation for his service-

connected [back] disorder.'" Appellant's Br. at 13. In the appellant's

view, "uch a conclusion fails to provide any meaningful method of

review as the Board has failed to provide any basis for its conclusion

that a rating higher than 20[%] is not warranted." Id. The appellant

further argues that a remand is required because the 1999 VA examination

was inadequate due to the examiner's asserted failure to provide an

opinion regarding functional loss due to pain (Appellant's Br. at 12-13),

and because the BVA assertedly violated Thurber v. Brown, 5 Vet.App. 119 (

1993), in failing to provide the appellant an opportunity to respond to

evidence upon which the Board relied, specifically the Guide (Appellant's

Br. at 14-15). He requests that the "Court vacate and remand the July

2000 BVA decision." Appellant's Br. at 15.

The Secretary counters that "the evidence of record overwhelmingly

demonstrates that the limitation of motion of the spine is not severe, but

moderate." Secretary's Br. at 13. He contends that, "n evaluating

whether a veteran is entitled to an increased [rating], the fact finder is

required to consider the entire recorded history of the disability, but [

must] focus primarily on the most recent medical evidence [under]

Francisco v. Brown, 7 Vet.App. 55 (1994)," and that "n this case, the

medical history and, most importantly, the most recent examination of

record provide a plausible basis in the record for the finding that [the a]

ppellant's back condition is moderately disabling." Id. He asserts that

the Board's decision was adequate because it discussed the applicable law

and because "[t]he Board showed that it considered both subjective and

objective evidence [of pain] when it stated that it considered both [the a]

ppellant's complaints and the medical evidence." Secretary's Br. at 15.

In his reply brief, the appellant contends that the Secretary "is now

providing post hoc reasons . . . for why the Board might have determined

the [appellant's] level of disability . . . ." Reply Br. at 1. He

argues that the examiner must "'express an opinion on whether pain could

significantly limit functional ability during flare-ups or when the [joint]

is used repeatedly over a period of time."' Reply Br. at 3 (quoting

DeLuca v. Brown, 8 Vet.App. 202, 207 (1995)). He again asserts that a

remand is warranted "ecause the examiner provided no opinion at all

regarding the full effect of the appellant's disability on his ordinary

activity . . . ." Id.

II. ANALYSIS

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; the

statement must be adequate to enable a claimant to understand the precise

basis for the Board's decision, as well as to facilitate review in this

Court. See 38 U.S.C. 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (

1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v.

Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the

Board must analyze the credibility and probative value of the evidence,

account for the evidence that it finds to be persuasive or unpersuasive,

and provide the reasons for its rejection of any material evidence

favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995

), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v.

Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra.

The appellant's back condition is rated under 38 C.F.R. 4.71a, DC

5292 (2002). Under DC 5292, a 10% rating is warranted for slight

limitation of motion, a 20% rating is warranted for moderate limitation of

motion, and a 40% rating is warranted for severe limitation of motion. 38

C.F.R. 4.71a, DC 5292. Functional loss due to pain may limit range of

motion under DC 5292. See DeLuca, 8 Vet.App. at 205; Schafrath v.

Derwinski, 1 Vet.App. 589, 592 (1991); see also 38 C.F.R. 4.40, 4.45, 4.

59 (2002). Such functional loss must be "supported by adequate pathology

and evidenced by the visible behavior of the claimant undertaking the

motion." 38 C.F.R. 4.40. In addition, "[w]eakness is as important as

limitation of motion, and a part which becomes painful on use must be

regarded as seriously disabled." Id.

Here, although the Board acknowledged that it was obligated to

consider functional loss due to weakness or pain, it failed to undertake

any such consideration. Instead, it simply stated that it had "considered"

the appellant's complaints of pain and discomfort (R. at 15); that those

complaints had been "taken into account" in the assignment of the

appellant's 20% disability rating (id); and that such consideration was

appropriate because the Court has held that such consideration satisfies

38 C.F.R. 4.40 and 4.45 (R. at 16 (citing Sanchez-Benitez, 13 Vet.App.

at 282)). The Court notes that, subsequent to the issuance of the BVA

decision on appeal, the relevant part of this Court's decision in Sanchez-

Benitez was vacated by the United States Court of Appeals for the Federal

Circuit (Federal Circuit) even though, in doing so, the Federal Circuit

concluded:

As noted by the Veterans Court, the Board did consider [38 C.F.R. 4.

40 and 4.45] in evaluating the veteran's disabilities and explicitly cited

the two sections, stating that "the functional impairment that can be

attributed to pain or weakness has been taken into account." Hence, the

Veterans Court did not err in concluding that the Board's decision

complied with the first requirement of VA [General Counsel Precedent

Opinion] 36-97 [(Dec. 12, 1997), which requires VA to consider 4.40 and

4.45 when evaluating disabilities under DC 5293].

Sanchez-Benitez, 259 F.3d at 1362. The Court recognizes that the

Sanchez-Benitez opinion cited by the Board and the Federal Circuit's

Sanchez-Benitez opinion addressing 4.40 and 4.45 did not appear to

require more than a conclusory statement with regard to those regulations.

See id. However, the DC at issue in Sanchez-Benitez, DC 5293, is not

expressly predicated on limitation of motion. See 38 C.F.R. 4.71a, DC

5293 (disability rating for intervertebral disc syndrome based

on the duration of the incapacitating episodes). In contrast, DC 5292,

under which the appellant's disability is rated in the instant case, is

predicated expressly on limitation of motion and, therefore, more than a

generic recognition of those regulations is required. See DeLuca, 8 Vet.

App. at 205; Schafrath, 1 Vet.App. at 592; see also 38 C.F.R. 4.40 and

4.45(f) (2002).

The Court concludes that the Board's conclusion regarding the

application of 38 C.F.R. 4.40 and 4.45 to the appellant's claim is

insufficient to enable the appellant to understand the precise basis for

that decision (see 38 U.S.C. 7104(d)(1)) and is not clear enough to

permit effective judicial review in this Court (see Gilbert, 1 Vet.App. at

57). The record is replete with medical evidence that documents the

appellant's back pain. See, e.g., R. at 33, 62, 250, 410, 456-58, 486,

530-34, 558-59, 591. In addition, the record contains statements made by

the appellant concerning the impact of pain on his range of motion (see, e.

g., R. at 518-23) and the Board "cannot simply ignore parol evidence from

a claimant . . . [but, rather,] must address such evidence one way or the

other." Ferguson v. Derwinski, 1 Vet.App. 428, 430 (1991). Pursuant to

4.40 and 4.45(f), the Board should have discussed the effect of pain

on the appellant's range of motion in reaching its decision regarding the

appropriate disability rating and should have provided an adequate

statement of reasons or bases for any conclusions made regarding the

impact of pain on the appellant's range of motion. See 38 U.S.C. 7104(d)(

1). Consequently, the Court concludes that a remand is required.

Given this disposition, the Court need not address the appellant's

remaining arguments as to this claim because he has not demonstrated that

he would be prejudiced by a remand of his claim without consideration of

his other assertions of VA error because the asserted errors could likely

be properly raised or eventually remedied on remand to the Board. See

Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (remand is meant to

entail critical examination of justification for decision; Court expects

that BVA will reexamine evidence of record, seek any other necessary

evidence, and issue timely, well-supported decision). On remand, the

appellant is free to submit additional evidence and argument, including

those raised in his briefs to this Court, in accordance with

Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order

). The Board shall proceed expeditiously, in accordance with section

302 of the Veterans' Benefits Improvements Act

of 1994, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (found at 38 U.

S.C. 5101 note) (requiring Secretary to provide for "expeditious

treatment" of claims remanded by Board or Court).

III. CONCLUSION

Upon consideration of the foregoing, the parties' pleadings, and the

record on appeal, the July 2000 BVA decision is VACATED and the matter

is REMANDED to the BVA for readjudication consistent with this

decision.

DATED: June 19, 2003

Copies to:

Christopher A. Glaser, Esq.

Wright, Robinson, Osthimer & Tatum

5335 Wisconsin Ave., NW, Suite 920

Washington, DC 20015

General Counsel (027)

Department of Veterans Affairs

810 Vermont Ave., NW

Washington, DC 20420

[Holley V. Principi]

02-0592

Holley.John.02-0592.wpd

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 02-0592

John T. Holley, Appellant,

v.

Anthony J. Principi,

Secretary of Veterans Affairs, Appellee.

Before GREENE, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

GREENE, Judge: Veteran John T. Holley appeals, pro se, an April 15,

2002, Board of Veterans' Appeals decision (Board) that found no clear and

unmistakable error (CUE) in a 1983 Board's denial of a disability rating

greater than 20% for his service-connected back condition. Record (R.) at

1-14. He also appeals the Board's determination that there was CUE in a

November 1983 Board decision and concluded that the effective date for an

increased rating for his service- connected back disorder was January 29,

1981. Id. The appeal is timely, and the Court has jurisdiction pursuant

to 38 U.S.C. 7252(a) and 7266(a). Single-judge disposition is

appropriate when, as here, the issue is of relative simplicity and the

outcome is not reasonably debatable. See Frankel v. Derwinski, 1 Vet.App.

23, 25-26 (1990). For the reasons that follow, the Court will remand the

matter for further adjudication.

I. FACTS

Mr. Holley served on active duty in the U.S. Air Force from January

1974 to January 1977. R. at 16-17. In July 1977, a VA regional office (

RO) awarded VA service connection for his low- back condition and assigned

a 10% disability rating. R. at 60-61. He appealed that rating

determination and on October 19, 1979, the Board reduced Mr. Holley's

disability rating to

noncompensable after x-rays taken during a VA medical examination

revealed no significant abnormalities. R. at 74, 105-09. In August 1980,

Mr. Holley asserted that his back condition should be rated 100% disabling

. R. at 111, 114-19. He also requested service connection for a nervous

condition and his inability to work, alleging both were secondary to his

service-connected back condition (R. at 116, 132-33, 137, 151), and for

left-sided paralysis and sciatic nerve pain (neuritis) (R. at 125, 128-29,

138). In November 1980, a VA medical report diagnosed Mr. Holley as

having "chronic back pain;" an orthopedic consultation revealed an

impression of "chronic lumbosacral strain;" and a radiology report

concluded: "Examination is compared with previous exam of 6-18-77 and

shows no change. There is slight narrowing of the L4-5 disc space. Minor

sacralization of the lateral elements of L5 on the right[,] otherwise

bones and joints are normal." R. at 144. The diagnosis rendered by the

radiologist was "questionable degenerative disc disease L4-5 otherwise

negative. Unchanged." Id. A December 22, 1980, VA disability evaluation

documented "chronic recurrent low back problem," and an x-ray report

showed "L4-5 degenerative disc disease with minimal reversed

spondylolisthesis." R. at 148, 150.

In January 1981, the RO determined that the December 22, 1980, VA

medical examination revealed no evidence of recurrent back strain and that "

reverse spondylolisthesis L4 on L5 is a [congenital disease] and not a

disability under the law" and, thus, continued a noncompensable rating for

Mr. Holley's back condition. R. at 156-57. The RO also denied numerous

additional claims, including, inter alia, claims for a rating of total

disability based on individual unemployability (TDIU) and service

connection for left-sided paralysis and for a nervous condition. Id. Mr.

Holley timely appealed that RO decision; he contended that he was entitled

to a rating of TDIU and should also be awarded service connection for

left-sided paralysis, sciatic neuritis, and a nervous condition associated

with his back problem (R. at 159, 162, 223-28). With his appeal, he

submitted VA clinical records dated August 12, 1980, that diagnosed him as

having "recurrent lumbosacral strain" with spasms, tenderness in the left

sciatic notch, inability to heel-and-toe walk, and pain radiating down his

left leg and hip. R. at 213. A VA treatment record dated January 29,

1981, revealed a diagnosis of "chronic recurrent mechanical back problem"

and "left sciatic pain and muscle spasm." R. at 171. In February 1981,

Mr. Holley was treated at a VA medical center for chronic sciatic pain and

reported anxiety and depression problems secondary to his back problems.

R. at 169-70. The

examiner stated in the report: "[P]atient should be referred back to [sic]

for pain management, after [workup] for etiology of pain is completed." R.

at 169. Mr. Holley was also treated at a VA orthopedic clinic that same

month and was prescribed Clinoril and referred to the "Brace Shop" for a "

low Holt corset." R. at 188.

In March 1981, the RO issued a Statement of the Case (SOC) and under

38 C.F.R. 4.71(a), Diagnostic Code (DC) 5295 (1980) continued the

noncompensable rating for Mr. Holley's service- connected back strain. R.

at 166. The RO found that he did not have "low back strain with

characteristic pain on motion." Id. The SOC did not address his claims

for a rating of TDIU and service connection for left-sided paralysis and a

nervous condition. R. at 165-67. Mr. Holley filed a Substantive Appeal

in March 1981. R. at 181. He contended that he could not work, was

partially paralyzed secondary to his back problem, and suffered chronic,

sciatic nerve pain and muscle spasms daily. Id. A Supplemental SOC (SSOC)

was issued in April 1981 that addressed the medical records from November

6, 1980, to January 6, 1981, and found no change in Mr. Holley's condition

and only "one complaint of chronic low back pain" during that time. R. at

195. In response to the SSOC, Mr. Holley submitted another Substantive

Appeal contending that he had been totally disabled since August 12, 1980,

because of his back condition and chronic, sciatic pain and that his

condition should be evaluated under DC 5293 (intervertebral disc syndrome

). R. at 198. He argued that the medical records dated November 4,

1980, December 1, 1980, January 29, 1981, and February 1981 substantiated

his claim. Id. In his appeal to the Board, Mr. Holley asserted that his

back condition should also be rated under DC 8520 (severe sciatic

involvement) and DC 8619 (neuritis). R. at 209-12. He argued that VA

medical treatment reports dated from August 12, 1980, to February 23, 1981,

documented that he suffered from chronic severe left sciatic pain, muscle

spasms, chronic neuritis, and a tender sciatic notch. R. at 209-12, 227.

In June 1981, a VA treatment record revealed "recurrent left sciatic pain"

with a decreased left-knee jerk and Mr. Holley was prescribed bed rest,

heat, Robaxin, and Tylenol #3 for pain. R. at 217. In July 1981, Mr.

Holley again requested that VA evaluate his conditions under DCs 8520 and

8619; consider his claim for a TDIU rating; and notify him of what

evidence was missing from his file to "secure my benefits if my claim is

below 60%." R. at 223, 233-34. He also submitted a statement dated July

22, 1981, from Dr. Reiner, a private physician. In that statement, Dr.

Reiner described Mr. Holley's treatment

in November 1980 for chronic pain in his left leg and treatment in June

1981 that revealed continuing problems with pain in his back and left leg

and a weight loss of 40 pounds. R. at 230. On August 18, 1981, a VA

treatment record included a diagnosis of Mr. Holley as having "recurrent

sciatic pain," and Mr. Holley submitted another letter to VA that stated

that he had "severe sciatic neuritis back problem, mechanical back problem,

strain (severe), [range of motion] down, long[-] standing chronic

intermittently severe left sciatic pain, muscle spasms (chronic), down

reflexes in left knee" and he requested a rating of at least 60% for these

conditions under DCs 5293, 8619, and 8520. R. at 216, 224-26. On

December 21, 1981, a VA treatment record reported "chronic intermittent

low back and left sciatic pain" and diagnosed Mr. Holley as having a "

chronic mechanical back problem [with] sciatica." R. at 237. A VA

treatment record in March 1982 reported "chronic recurrent left sciatica."

R. at 237, 248.

In March 1982, the Board defined the issue as "Entitlement to an

increased (compensable) rating for low[-]back strain" and remanded the

claim to the RO for an orthopedic and neurological examination to

ascertain the severity of Mr. Holley's back condition. R. at 244-46. The

Boar d decision stated: "[T]he claim should be reviewed by the originating

agency. If the benefit sought on appeal is not granted, the veteran and

his representative should be furnished an [sSOC]. The claims folders

should then be returned to the Board for further appellate consideration,

if in order." R. at 246. The Board remand did not refer to Mr. Holley's

other claims on appeal for a rating of TDIU, and service connection for

left-side paralysis, sciatic pain, and a nervous condition. R. at 244-46.

A March 22, 1982, VA medical report revealed that Mr. Holley had "chronic

recurrent left sciatica" and that his prescriptions for Robaxin and

Tylenol #3 had been refilled. R. at 248. In May 1982, a VA neurological

examination was conducted that diagnosed Mr. Holley as having "chronic

lumbar herniated disc, which extends back into the active military duty

most likely, with numerous visits to orthopedic and neurological

specialists in 1975 and 1976." R. at 253. The examiner opined that Mr.

Holley's condition was compatible with an L5-S1 disc with a compression of

the S1 root causing the sensory disturbance which was found on examination

in the lateral aspect of the left foot." R. at 252-53.

In June 1982, the RO assigned Mr. Holley a 20% disability rating for

his service-connected back condition under 38 C.F.R. 4.71a, DC 5293,

effective January 21, 1981, and denied, inter alia,

his claims for a rating of TDIU, and service connection for degenerative

disc disease, reverse spondylolthesis, left-sided paralysis and a nervous

condition. R. at 258-60. The RO did not furnish Mr. Holley an SSOC as

directed by the Board's 1982 remand order for the claims that were denied.

R. at 263-64. Mr. Holley appealed that RO decision on the basis that he

believed that his back condition should be rated as 40% disabling under DC

5293. R. at 266.

In August 1982, the RO issued an SSOC that stated: "To warrant an

assignment of 40[%], it must be shown there be [sic] persistent symptoms,

compatible to sciatic neuropathy with characteristic pain and demonstrable

muscle spasm, absence of ankle jerk, or other neurologic findings

appropriate to the cite of the diseased disc and it must be shown that

there are recurrent attacks with only intermittent relief." R. at 271-73.

The RO concluded in the SSOC that Mr. Holley's condition did not warrant a

rating greater than 20% for his back condition. Id. Mr. Holley submitted

a Substantive Appeal for "low back strain[,] now diagnosed [as] herniated

disc L5-S1." R. at 277. In March 1983, the Board denied entitlement to a

rating greater than 20% and to an effective date earlier than January 29,

1981. R. at 282-89. The Board stated:

The recent examination showed that the veteran has a decreased pinprick

sensation on the lateral aspect of the left foot which is in the

distribution of the S1 root. Station and Gait are unremarkable. The

veteran does not have further disc symptomatology as described in the

rating criteria and the findings are otherwise compatible with a moderate

intervertebral disc syndrome.

R. at 288. Mr. Holley did not appeal that decision. R. at 1-432. In

1999, Mr. Holley filed a motion alleging CUE in the March 1983 Board

decision. He asserted that he was entitled to a rating greater than 20%

for his back condition under DC 5293 because the 1983 Board had (1) failed

to consider all the evidence of record; (2) erred by not awarding him

special monthly compensation for "loss of major joints;" (3) failed to

consider 38 C.F.R. 4.40, 4.45, and 3.321(b)(1); and (4) failed to

acknowledge in its decision that he was diagnosed in February 1981 as

having severe recurring sciatic pain attacks. R. at 306-07, 309, 392-404.

In February 2001, the Board denied Mr. Holley's CUE motion concluding that

the 1983 Board did not err in assigning a 20% rating and an effective date

of January 29, 1981. R. at 319-30. Mr. Holley appealed to the Court, and

in April 2001, the Court vacated the Board's decision and remanded the

matter for readjudication in light of the newly

enacted Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-

475, 114 Stat. 2096, now codified in part at 38 U.S.C. 5102, 5103, and

5103A. R. at 390. After further adjudication, the Board in the decision

here on appeal determined that the March 1983 Board had committed CUE when

assigning Mr. Holley an effective date of January 1981 for his increased

rating because the effective date should have been December 1, 1980. The

Board concluded:

In the March 1983 Board decision, the Board determined that an

earlier effective date prior to January 29, 1981, for the

assignment of a compensable evaluation for the veteran's

service-connected back disability was not warranted on the

basis that January 29, 1981, was the earliest date on which it

was ascertainable that an increase in disability has occurred.

However, as pointed out by the veteran's representative, a VA

clinical record dated December 1, 1980, noted that "[patient]

has chronic recurrent low back problem [and] has been taking

Robaxin [and] Tylenol #3. He is service connected for this [

and] wants refill which he takes on PRN basis. Refill Robaxin [

and] Tylenol #3." The representative is quite correct in that

the two findings are essentially identical, and no sound reason

existed to choose the later [sic]. The Board now finds that

the VA clinical record of December 1, 1980, made it

ascertainable that an increase in disability warranting a

compensable evaluation for a herniated lumbar disc, L5-S1, with

compression to the S1 nerve root of the left lower extremity,

had occurred as of that date and it was error for the Board not

to so find at the time of the Board's March 1983 decision.

R. at 11. Concerning any CUE in the 1983 Board decision that denied a

rating greater than 20% for Mr. Holley's back condition, the Board stated:

In this case, the record fails to provide a basis on which to conclude

that the March 1983 Board decision was clearly erroneous on the increased

evaluation issue. The March 1983 Board decision noted the veteran's

service medical history and subsequent medical history in detail and

concluded that an evaluation in excess of 20[%] was not warranted. . . . [

I]n regard to the Board's March 1983 decision denying entitlement to an

evaluation in excess of 20[%] for a herniated lumbar disc, L5-S1, with

compression of the S1 nerve root of the left lower extremity, a review of

the record reflects no error in the Board's adjudication of the veteran's

appeal which, had it not been made, would have manifestly changed the

outcome when it was made.

R. at 10. This appeal followed.

Mr. Holley argues that the Board decision here on appeal erred

by not finding CUE in the 1983 Board decision that denied a rating greater

than 20% because the 1983 Board assertedly (1) failed to consider all

evidence of record, specifically medical reports dated August 1980 (

Appellant's Brief (Br.) at 13-15); (2) failed to consider 38 C.F.R. 3.

459, 4.40, 4.45, 4.66, 4.71, 4.120, 4.123, 4.124 (Id. at 15); (3) failed

to evaluate his claim under DC 8520 for paralysis of the sciatic nerve (Id.

at 15-16); and (4) failed to consider his claim for nervousness,

depression, and anxiety secondary to his service-connected back pain (Id.

at 16). Mr. Holley also contends that the Board decision here on appeal

erred by not determining that the 1983 Board should have assigned an

effective date in August 1980 for his increased rating and failed to

provide an adequate statement of reasons or bases because it failed to

address all his CUE arguments in its decision. Further, he argues that

his claims for a nervous condition and a rating of TDIU remain

unadjudicated. Id. at 19-20.

The Secretary counters that the Board decision here on appeal should

be affirmed. He contends that Mr. Holley's argument that the Board erred

in finding that the 1983 Board had considered all evidence of record is

without merit. Secretary's Br. at 21-22. He maintains that the August

1980 x-ray reports do not reveal findings that would result in a different

outcome if the 1983 Board or the Board decision here on appeal had further

discussed the x-rays in its decision. The Secretary contends that Mr.

Holley is asking that the Court re-weigh the evidence before the March

1983 Board, which is not a basis for CUE. Id. at 22. Further, the

Secretary argues that under Andre v. Principi, 301 F.3d 1354, (Fed. Cir.

2002), the Court lacks jurisdiction to consider Mr. Holley's additional

arguments that there was CUE in the 1983 Board decision because he did not

first raise them to the Board. He requests that the Court affirm the

April 2002 decision on appeal. Id. at 24.

II. APPLICABLE LAW AND ANALYSIS

A previous Board decision must be reversed or revised where

evidence establishes CUE. 38 U.S.C. 7111; 38 C.F.R. 20.1400-20.1411 (

2004). For CUE to exist either (1) the correct facts in the record were

not before the adjudicator or (2) the statutory or regulatory provisions

extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.

App. 242, 245 (1994); 38 C.F.R. 20.1403, 20.1404. In addition, "the

error must be 'undebatable' and of the sort 'which, had it not been made,

would have manifestly changed the outcome at the time it was made.'" Id. (

quoting

Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)); see also

Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting "

manifestly changed the outcome" language of Russell, supra). "In order

for there to be a valid claim of [CUE], . . . [t]he claimant, in short,

must assert more than a disagreement as to how the facts were weighed or

evaluated." Russell, 3 Vet.App. at 313; see 38 C.F.R. 20.1404. That is

because, "even where the premise of error is accepted, if it is not

absolutely clear that a different result would have ensued, the error

complained of cannot be, ipso facto, clear and unmistakable." Fugo v.

Brown, 6 Vet.App. 40, 43-44 (1993); see 38 C.F.R. 20.1403. On appeal of

a Board determination that there was no CUE in a prior final Board

decision, the Court's review is limited to determining whether the Board's

conclusion was "arbitrary, capricious, an abuse of discretion, or not

otherwise in accordance with law" (38 U.S.C. 7261(a)(3)(A)) and whether

the decision is supported by an adequate statement of reasons or bases (38

U.S.C. 7104(d)(1)). See Russell, 3 Vet.App. at 315.

The Court has held that "the Board [must] articulate with reasonable

clarity its reasons or bases for decisions, and in order to facilitate

judicial review, the Board must identify those findings it deems crucial

to its decision and account for the evidence which it finds to be

persuasive or unpersuasive." Gilbert v. Derwinski, 1 Vet.App. 49, 57 (

1990). Generally, when the Board does not provide an adequate statement

of reasons or bases, the decision will be vacated and the matter remanded

for further action. See Hicks v. West, 12 Vet.App. 86 (1998); Meeks v.

Brown, 5 Vet.App. 284, 288 (1993).

A. Earlier Effective Date

To the extent that Mr. Holley argues for an earlier effective date,

the Board decision here on appeal lacks an adequate statement of reasons

or bases for its finding that December 1, 1980, was the proper effective

date. See Gilbert, supra. The Board determined that there was CUE in the

1983 Board decision because a VA medical record dated December 1, 1980 (R.

at 172) provided the same findings as the January 29, 1981, medical record (

R. at 171) that was used by the 1983 Board to determine the proper

effective date. R. at 11. A review of the record on appeal reveals that

VA medical records dated August 12, 1980, provided essentially the same

findings (recurrent low back with prescriptions of Robaxin, Tylenol #3,

and bed rest). Compare R. at 172 with R. at 213. However, there is no

discussion of this medical evidence in the 1983 Board decision. See R. at

282-

90. Although the 1983 Board was not required to summarize the evidence

reviewed in making its decision, the 2002 Board was required to discuss

adequately all material issues of fact and law in its decision. Eddy v.

Brown, 9 Vet.App. 52 (1996). Accordingly, the 2002 Board erred by not

considering the August 12, 1980, VA medical report, when it found CUE in

the 1983 Board decision and awarded an effective date of December 1, 1980,

for Mr. Holley's 20% disability rating. Therefore, remand is required for

the Board to consider all the medical evidence of record and to provide an

adequate statement of reasons or bases for its conclusion that December 1,

1980, was the proper effective date in light of the August 12, 1980,

medical records. See 38 C.F.R. 3.400 (1982).

B. Increased Rating

At the time of the 1983 Board's decision, DC 5293 (intervertebral

disc syndrome) provided that a veteran is entitled to a 10% disability

rating for mild symptomatology; a 20% disability rating for moderate

disability consisting of "recurrent attacks"; a 40% disability rating for

severe disability consisting of "recurrent attacks, with intermittent

relief"; and a 60% disability rating for pronounced disability consisting

of "persistent symptoms compatible with sciatic neuropathy with

characteristic pain and demonstrable muscle spasm, absent ankle jerk, or

other neurological findings. . . .with little intermittent relief." 38 C.

F.R. 4.71(a), DC 5293 (1982); See also R. at 10. According to the

evidence of record, the 1983 Board evaluated Mr. Holley's low-back

disability under DC 5293. The evidence of record reveals numerous VA

medical reports dated from 1980 through 1983 that document that Mr. Holley

had a consistent diagnosis of chronic recurrent lower back problems that

required him to take Robaxin and Tylenol #3, and to undertake bed rest.

See R. at 142-44 (chronic back pain, narrowing of the L4-5 disc space),

148-150 (L4-L5 degenerative disc disease), 169 (chronic sciatic pain), 171 (

chronic recurrent lower back and left sciatic pain and muscle spasm), 172 (

chronic recurrent lower back problem), 173 (acute episode of low-back and

left-leg pain), 188 (chronic lumbosacral strain, sent to "Brace Shop for a

low Holt corset"), 213 (acute low-back pain radiating down leg and hip,

some spasm, tenderness left sciatic notch), 214 ("long[-]standing chronic

intermittently severe left-sciatic pain"), 216 (recurrent episodes of

sciatic pain), 217 (chronic low- back pain, recurrent left-sciatic pain),

230 (chronic back ache with pain down left leg), 237 (chronic mechanical

back problem, left sciatic pain), 248 (chronic recurrent pain, left

sciatic). The most recent medical evidence before the 1983 Board was a VA

neurological examination conducted in

May 1982 that revealed a "chronic lumbar herniated disc" that caused "

sensory disturbance" in Mr. Holley's left foot. R. at 252.

However, the Board decision here on appeal failed to discuss how that

medical evidence before the Board in 1983 did not meet the DC 5293

criteria for a disability rating of 40%, which required "severe; recurring

attacks, with intermittent relief," especially in light of the voluminous

medical records reporting that Mr. Holley was having chronic recurrent

back problems with sciatic pain. Further, the Board decision failed to

discuss whether the 1983 Board committed CUE by not evaluating Mr.

Holley's condition under DCs 8520 and 8619. R. at 209-12, 233-34. The

Board's failure to consider and discuss these issues in its decision

prevents the Court from conducting a meaningful review of the Board

decision or Mr. Holley to understand its rationale, and, thus, its

statement of the reasons or bases for its decision is inadequate. See 38

U.S.C. 7104(d)(1). As the Court held in Gilbert, "a bare conclusory

statement, without both supporting analysis and explanation, is neither

helpful to the veteran, nor 'clear enough to permit effective judicial

review,' nor in compliance with statutory requirements." Gilbert, 1 Vet.

App. at 57 (quoting International Longshoreman's Ass'n v. National

Mediation Bd., 870 F.2d 733, 735 (D.C. Cir. 1989). Accordingly, the

Board decision here on appeal that found no CUE in the 1983 Board's

decision that denied a disability rating greater than 20% was not

supported by an adequate statement of reasons or bases and will be

remanded.

C. Pending Claims

In 1982, Mr. Holley presented to the RO and the Board claims for

entitlement to service connection for sciatic neuritis, left-sided

paralysis, a nervous disorder/depression, and a rating of TDIU. See R. at

159, 162, 181, 198, 209-12, 216, 223-28. Apparently, he now argues that

the RO or the Board committed CUE by failing to adjudicate those claims.

Although the Court has jurisdiction to decide whether claims remain

pending for adjudication, such jurisdiction is not invoked by raising a

CUE motion. See Livesay v. Principi, 15 Vet.App. 165, 179 (2001) (en banc

) ("CUE provides a procedural device that allows for a final RO or Board

decision to be reversed or revised."). In this case, however, there is no

evidence in the record that the Board has rendered a final adverse

decision on Mr. Holley's claims for service connection for left-sided

paralysis, sciatic neuritis, a nervous disorder, and a rating of TDIU.

See Roberson v. Principi, 17 Vet.App. 135, 138

(2003) (per curiam order) (concluding that Court has jurisdiction over

issue of pendency of unadjudicated TDIU rating claim because issue was

presented to RO and Board); see also Fenderson v. West, 12 Vet.App. 119 (

1999) (vacating Board decision and remanding to Board for appropriate

procedural compliance, specifically the issuance of a SOC); see also

Norris v. West, 12 Vet.App. 413, 422 (1999) (rejecting contention that

RO's failure to adjudicate informally raised TDIU claim constitutes final

disallowance of the claim and concluding that when VA has failed to comply

during adjudication process with certain procedural requirements mandated

by law or regulation, claim remains pending in that VA adjudication

process, and, therefore, there is no final adverse RO decision that can be

subject to CUE attack). Although the 1983 Board decision may be a final

decision as to the rating and effective date assigned for Mr. Holley's

service-connected back disorder, that decision is not a final decision on

his claims for service connection for his left-sided paralysis, sciatic

neuritis, a nervous disorder, and a rating of TDIU, because that decision

never addressed those claims. The June 1982 RO decision did deny those

claims after they were remanded by the Board in March 1982. See R. at 244-

46, 258-60. However, it appears from the evidence of record that the RO

failed to comply with the Board's March 1982 remand order to issue an SOC

for any denied claims. See 38 U.S.C. 7105(a), (d)(1); Hanson v. Brown,

9 Vet.App. 29, 31-32 (1996) (concluding that unadjudicated claim normally

remains open and pending until final action is taken by RO unless claim is

withdrawn); 38 C.F.R. 3.160© (2004) (defining "[p]ending claim" as

application that "has not been finally adjudicated"); see also Stegall v.

West, 11 Vet.App. 268, 271 (1998). Accordingly, there are neither

sufficient findings of fact by the Board nor a sufficiently detailed

record for the Court to determine whether there are pending unadjudicated

claims. The Court trusts that VA will examine the matter and promptly

take whatever action is required. Further, the Board has not addressed Mr.

Holley's additional allegations of CUE. Therefore, they are not properly

before the Court. See 38 U.S.C. 7252(a); Andre, 301 F.3d at 1361-62 ("

each 'specific' assertion of CUE constitutes a claim that must be the

subject of a decision by the Board before [this] Court can exercise

jurisdiction over it"); Russell, 3 Vet.App. at 315 (Board decision on

specific issue of CUE is necessary for this Court to exercise its

jurisdiction); see also 38 U.S.C. 7111(e) (claim of CUE in Board

decision shall be raised to Board in first instance and decided by Board

on merits).

However, on remand VA shall address all Mr. Holley's CUE arguments and

provide an adequate statement of reasons or bases for its decision.

Upon consideration of the foregoing analysis, the record on appeal,

and the parties' pleadings, and having "take[n] due account of the rule of

prejudicial error" under 38 U.S.C. 7261(b)(2), the Board decision will

be vacated and the CUE matters remanded for issuance of a readjudicated

decision supported by an adequate statement of reasons or bases. See 38 U.

S.C. 5109A, 7104(a), (d)(1); 38 C.F.R. 3.105; Fletcher v. Derwinski,

1 Vet.App. 394, 397 (1991). On remand, Mr. Holley is free to submit

additional evidence and argument on the remanded claim, including the

arguments raised here on appeal, and the Board must consider any such

evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (

2002) (stating, in case where Court remanded and declined to address

appellant's arguments and evidence concerning Board error, that, on remand,

appellant is free to raise such arguments and evidence to the Board and

the Board must address them).

III. CONCLUSION

Upon consideration of the foregoing, the April 15, 2002, Board

decision is VACATED and the matter is REMANDED for action consistent with

this decision.

DATED: January 14, 2005

Copies to:

John T. Holley

PO Box 90842

Los Angeles, CA 90009

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

[Subject: Training Letter On Spinal Cord Injuries And Potential Complications]

July 10, 2003

Director 211A

All VBA Regional Offices and Centers Training Letter 03-04

SUBJECT: Training letter on spinal cord injuries and potential complications

1. This training material was written in cooperation with Dr. Barry Goldstein, Assistant Chief Consultant, Spinal Cord Injury and Disorders Strategic Healthcare Group, Seattle, Washington. It includes primarily medical information on spinal cord injuries and complications from spinal cord injuries. The intent of this letter is to increase rater sensitivity to the catastrophic nature of these types of injuries. This letter is not intended to make policy.

2. If you have any questions or comments about the content of this letter, or note any errors, please check the appropriate calendar pages at: http://152.124.238.193/bl/21/publicat/Letters/TrngLtrs.htm

/S/

Ronald J. Henke

Director, Compensation and Pension Service

Enclosure

An injury or disease that affects the spinal cord may profoundly change one’s life and how one lives it. To insure each veteran with a spinal cord injury receives a fair and accurate rating, it is helpful to have an understanding of complications that can result from this particular type of injury.

Medical information from this training letter is in large part from the Veterans Health Initiative publication titled “Spinal Cord Injury.” For a more detailed discussion regarding spinal cord injuries, please refer to this publication on the Internet at: http://www.va.gov/vhi/.

Most veterans with spinal cord injuries are entitled to special monthly compensation (38 CFR 3.310). Before rating a veteran for a spinal cord injury, it is essential to understand how and when to apply 38 CFR 3.350. The four part video broadcast on special monthly compensation which aired in October of 2000 is available in a condensed format on CD. You can obtain a copy of these CDs through your training co-ordinator. The supplementary training material for this course is available on the intranet at: http://152.124.112.218/C&P_Training/RVSR/SMC.htm

This training letter parenthetically references particular AMIE Worksheets, sections of the Rating Schedule and Diagnostic Codes that you may find useful. Because there are changes from time to time in these, this parenthetical information may have changed.

Terminology and Causes

Traumatic spinal cord injuries (spinal cord injury) and disease processes (spinal cord disorder) may result in spinal cord dysfunction. There are several major causes of traumatic spinal cord injuries (SCI). These include: spinal cord injury caused by a fracture of the vertebral body with the bony fragments impinging on the cord; encroachment on the spinal cord by dislocation of the vertebral bodies; transient narrowing of the spinal canal in the absence of bony fracture and traction on the cord causing damage to the cord. There are other traumatic causes such as gunshot and knife wounds.

Some nontraumatic spinal cord disorders (SCD) include multiple sclerosis, narrowing of the spinal canal with subsequent compression of the spinal cord (spinal stenosis), spinal cord tumor, HIV-related myelopathy, amyotrophic lateral sclerosis (ALS), post polio syndrome, and spinal cord infarction. In some situations, there is shared symptomatology and similarly associated complications between SCIs and SCDs.

Neurologic Classification

The spinal cord is the body’s primary pathway for transmitting information between the brain and the peripheral nervous system. An intact spinal cord is necessary for voluntary movement and to sense the environment. An intact spinal cord is also necessary for proper functioning of internal organs and blood pressure. SCIs and disorders (SCI&D) disrupt the ability to move, and the ability to sense pain, temperature, vibration and position. SCI&D can also disrupt functions of internal organs such as the bladder, bowel, and blood pressure regulation.

By convention, the “neurologic level” refers to the first level with normal function. To determine the neurologic level, the examiner tests functions at each neurologic level by testing the function of the corresponding segment of spinal cord and “nerve root”. For motor function, the examiner tests voluntary movement; for sensory function, the examiner tests the ability to sense light touch and pinprick. With reference to the spinal cord, the first neurologic level is designated as cervical 1 (C1), the next level down is cervical 2 (C2), and so on. Cervical levels include C2-C8 and supply the neck and upper limb. This is followed by thoracic levels (T1-T12) which supply the chest and abdominal wall, lumbar levels (L1-L5) which supply parts of the abdominal wall and lower limb, and sacral levels (S1-S5) which supply parts of the lower limb, genitalia, and organs (bladder and bowel).

The level is often different for motor and sensory functions as well as right and left sides due to anatomical differences and asymmetric injuries. Therefore, the examiner will often determine separate motor and sensory functions, as well as for the right and the left sides. The neurologic level for sensation is the level closest to the head with intact light touch and sharp/dull discrimination. For motor function, the neurologic level is the level closest to the head where the examiner indicates the person can move through a full range of motion against gravity.

Pathophysiology of Spinal Cord Injuries

After the initial injury, swelling, bleeding, ischemia and inflammatory reactions can cause additional damage to the spinal cord. It is rare for the cord to be actually severed (“transected”). Worsening of neurologic function may occur months or years after the initial injury by scar formation, traction on the spinal cord, or cavitation within the spinal cord (post-traumatic syringomyelia).

The International Standards for Neurological Classification of Spinal Cord Injury defines “complete” and “incomplete” injury. A complete spinal cord injury is when there is complete absence of sensory function and complete loss of motor function in the lowest sacral segment. An incomplete injury is when there is at least some preserved function in either the motor component or in the sensory component of the lowest sacral segment and some preserved sensory function or some preserved motor function below the neurologic level.

Complications and Consequences of SCIs may include impairment or disability to many body systems including:

1. Neurologic (NEUROLOGICAL CONDITIONS AND CONVULSIVE

DISORDERS)

2. Musculoskeletal (THE MUSCULOSKELETAL SYSTEM)

3. Respiratory (THE RESPIRATORY SYSTEM)

4. Cardiovascular (THE CARDIOVASCULAR SYSTEM)

5. Gastrointestinal (THE DIGESTIVE SYSTEM)

6. Genitourinary (THE GENITOURINARY SYSTEM)

7. Dermatologic (THE SKIN)

8. Psychologic (MENTAL DISORDERS)

1. Neurologic (NEUROLOGICAL CONDITIONS AND CONVULSIVE DISORDERS)

(38 CFR 4.124 a Schedule of ratings – neurological conditions and convulsive disorders)

Autonomic Dysreflexia (AD) is potentially a life threatening condition manifested by a sudden and extreme increase in blood pressure. It occurs when an internal or superficial noxious (i.e., painful) stimulus causes a sudden imbalance in the autonomic nervous system. Up to 85% of those with a spinal cord injury at or above the sixth thoracic neurologic level (T6) experience at least one episode of AD. Signs and symptoms of AD include hypertension or hypertensive crisis, headache, visual changes and flushing. In those with long-standing spinal cord injury, AD may cause only minimal symptoms and the only complaint may be that “something is not right.” The stimulus that causes AD may not be sensed as pain; in fact, the stimulus may not be sensed at all. Two common causes of AD are distention of the bladder and distention of the bowel. Some other causes of AD include pressure ulcers, tight clothing, genital stimulation or intercourse, uterine contraction associated with menstruation, and ingrown toenails. AD is treated by searching for the inciting cause and removing it. When simply removing the inciting cause does not eliminate the elevated blood pressure, pharmacologic intervention with blood pressure monitoring is necessary. Proper bladder management, and regular bowel care helps prevent AD. In some individuals, chronic prophylactic medication is necessary.

Chronic pain after a spinal cord injury is common. “Central neuropathic” pain is pain that is caused by injury to or irritation of the nerves. It is characterized as burning, tingling, stabbing and shooting pain. There is no known cure. Several medications are used in the treatment of neuropathic pain. Medications include antidepressants, anticonvulsants, local anesthetics, and narcotics. Of people with SCIs, 10-20% report that narcotics help central pain. Complications of narcotic use may include addiction and constipation.

Spasticity and spasms occur in about 35% of people with SCIs. In some people, spasticity may interfere with transfers, walking, and activities of daily living. Severe spasticity may cause pressure ulcers and other secondary problems. There are several medications available that diminish spasticity. Medications used to treat spasms are often associated with side effects. Common side effects of these medications may include sedation, withdrawal hallucinations and seizures (baclofen), sedation and hypotension (clonidine), and depression and addiction (diazepam).

Invasive treatments for spasticity include neurolytic blocks with ethyl alcohol, phenol, or botulinum toxin, intrathecal baclofen infusion, myelotomy (incising the lumbar cord) or dorsal rhizotomy (cutting the dorsal roots).

Posttraumatic syringomyelia (syrinx) occurs in 3-4% of people with SCI. Syringomyelia is a slowly progressive syndrome where a slowly enlarging fluid filled cavity forms in the central segments of the spinal cord. The syrinx can expand either up or down or radially (outwards) and may compress the spinal cord. This may cause progressive neurologic defects generally consisting of segmental muscular weakness and atrophy along with loss of pain and temperature sensation while sense of touch is preserved. Symptoms and signs depend upon the location of the syrinx and area of spinal cord affected. Post traumatic syringomyelia is treated by percutaneous CT-guided drainage and surgical shunting.

2. Musculoskeletal (THE MUSCULOSKELETAL SYSTEM)

(AMIE WORKSHEETS: SPINE; BONES; JOINTS; HAND)

(38 CFR 4.71a Schedule of ratings – musculoskeletal system.)

Musculoskeletal complications from SCIs often lead to additional functional problems. One factor that is essential in maintaining normal bone mass and strength is weight bearing. Bone loss below the level of the neurologic impairment starts soon after a spinal cord injury and may rapidly progress to osteoporosis. As osteoporosis progresses, minor forces (e.g., slip from a wheelchair or range of motion) can result in a fracture. Falls cause most fractures because people with SCIs have both weak bones and an increased incidence of falls. Complications from fractures include autonomic dysreflexia (AD), skin breakdown, and blood clots. In most people, fractures are treated with a splint and immobilization. Occasionally, surgery is performed. Immobilization, the risk of skin breakdown from a splint, rehabilitation, mobility, and surgery are more involved in people with SCIs.

Neck and back pain are common in people with SCIs. Causes for back pain include mechanical problems following fractures, dislocations, fusion and instrumentation of the vertebral column. After the initial SCI, surgery is sometimes performed to stabilize the back. Hardware may be used during this surgery. Spine pain can occur when this hardware loosens, brakes or gets infected.

Myositis ossificans (DC 5023), at times also referred to as heterotropic ossification, affects approximately 20-30% of people with SCIs. This is the development of ectopic bone within the soft tissues surrounding peripheral joints. Almost half of the time myositis ossificans is identified it is clinically insignificant. When it is clinically significant, signs and symptoms may include decreased range of motion, localized swelling, redness, and/or fever. If pain sensation is intact in the affected area, the person may experience pain. Treatment for HO may include etridronate disodium and / or nonsteroidal anti-inflammatories. Surgery is often performed if the HO causes functional problems. Surgery is associated with significant risks of bleeding, infection, and recurrence. Low dose radiation is also used but the use of low dose radiation in this setting remains controversial.

Repetitive motion disorders of the soft tissues and joints of the upper extremity are common in people with SCI. People with SCI&D, often use their upper limbs for weight-bearing and mobility thus increasing biomechanical stresses on the shoulders, arms, wrists, and hands.

Approximately one-third to one-half of people with SCI have significant chronic shoulder pain that interferes with daily activities and sleep. Frequently there is no preceding trauma. Propelling a wheelchair, transfers, or using crutches may be associated with repetitive motion disorders of the shoulder, wrist, and hand. These injuries include rotator cuff tears, bursitis, tendonitis, carpal tunnel syndrome, and osteoarthritis. Physical therapy intervention is often necessary to change posture, seating, equipment, and home and work environments.

3. Respiratory (THE RESPIRATORY SYSTEM)

(AMIE WORKSHEET: RESPIRATORY (OBS, REST)

(38 CFR 4.97 Schedule of ratings – respiratory system.)

Nerves from the upper portion of the spinal cord (C3 to C5) allow a person to breath. C3, C4, and C5 innervate the diaphragm. The ability to cough and to fully expand the lungs comes from abdominal muscles, and intercostals muscles that are innervated by thoracic nerves (T1 – T12).

People with damage to the spinal cord at the C1 to C3 affecting their breathing, require mechanical ventilation. Unilateral or bilateral paralysis of the diaphragm will predispose a person to atelectasis and pneumonia. Cervical and upper thoracic SCI will also predispose a person to respiratory complications like pneumonia due to restrictive pulmonary function and an impaired ability to cough. Ineffective cough leads to retained secretions, mucous plugging, and infections. Restrictive changes with a low forced vital capacity (FVC) may be seen on pulmonary function tests.

4. Cardiovascular (THE CARDIOVASCULAR SYSTEM)

(AMIE WORKSHEETS: HEART; ARTERIES and VEINS)

(38 CFR 4.104 Schedule of ratings - cardiovascular system.)

The spinal cord is vital to proper regulation of heart rate and blood pressure. In response to exercise, and to sustain this physical exertion, the spinal cord and brain work to increase the heart rate and blood pressure. People with SCI&D generally have a reduced exercise capacity. They may experience fatigue and exhaustion after minimal exertion.

People with SCI&D may be at increased risk for coronary artery disease. (DC 7005). Risk factors after SCI&D include physical inactivity, increased low-density lipoprotein levels (LDL), low high-density lipoprotein levels (HDL), obesity, and an increased incidence of glucose intolerance.

Chest and jaw pain are sometimes symptoms of cardiac ischemia. People with SCIs above T5 may not experience these symptoms. Since exercise testing is often not possible after a SCI, a pharmacologic stress test (e.g., adenosine thallium stress test) is used to evaluate cardiac disease.

Edema of the lower extremities (commonly referred to as “peripheral edema” or more simply, “edema”) is common in people with SCIs. Edema is swelling caused by fluid within tissues. Normally the muscles of the lower extremities act to pump fluid out of the legs. In people with SCIs the leg muscles do not work properly. This causes lack of normal pump action and this leads to edema. Edema can lead to skin breakdown. (DC 7899 – 7120). Leg elevation and compression stockings can minimize edema. Diuretics can get rid of excess fluid. However, diuretics lower blood pressure. People with a spinal cord injury generally have a low baseline blood pressure and cannot tolerate any further drop in blood pressure. Therefore, diuretics are not used to treat edema in someone who has a spinal cord injury. Edema may predispose a person to deep venous thrombosis (DVT). DVT can lead to life threatening pulmonary embolism. Though DVT occurs more frequently within the first three months following the acute spinal cord injury, thereafter its incidence still remains increased when compared to the general population. DVT can lead to chronic problems including post phlebitic syndrome. (DC 7121).

5. Gastrointestinal (THE DIGESTIVE SYSTEM)

(AMIE WORKSHEETS: RECTUM and ANUS; ESOPHAGUS AND HIATAL HERNIA; STOMACH AND DUODENUM AND PERITONEAL ADHESIONS)

(38 CFR 4.114 Schedule of ratings – digestive system.)

SCIs can affect the nerve supply to the gastrointestinal tract. This can lead to slow gastric emptying, increased acid secretion, ulcers, ileus, and changes in colonic motility. Gastrointestinal complications can be a source of inconvenience, frustration and expense. To avoid constipation and incontinence, most people with an SCI will need a “bowel program”. These programs vary depending on whether the person has an “upper motor neuron bowel” or a “lower motor neuron bowel”. An "upper motor neuron bowel" results from an injury above the S2 level whereas a "lower motor neuron bowel" results from an injury at the S2-S4 levels. Whether upper or lower motor neuron bowel, both result in loss of voluntary anal sphincter control. (DC 7332; See also 38 CFR 3.350 (e) (iv) (2) regarding SMC).

Bowel programs help establish routine bowel movements. These programs often require special equipment (accessible toilet, foam rubber commode cushions to prevent pressure damage to the buttocks) supplies (plastic gloves, lubricant), medications (e.g. suppositories, fiber tablets), and special dietary measures. Bowel care often requires insertion of a well lubricated suppository high up against the mucosa of the rectal wall to start peristalsis. Then 15 minutes later the person should be on the toilet with his or her feet up on a foot stool. This body position helps bowel evacuation. The person with the SCI or the attendant may need to use “digital stimulation”. Digital stimulation involves inserting a gloved, lubricated finger into the rectum. Gentle rotation of the finger in a circular motion pressing all sides results in subsequent bowel evacuation.

People with SCIs have an increased incidence of esophagitis, and intermittent abdominal distention. They also have an increased incidence of hemorrhoids. (DC 7336).

6. Genitourinary (THE GENITOURINARY SYSTEM)

(AMIE WORKSHEET: GENITOURINARY)

(38 CFR 4.115a Ratings of the genitourinary system-dysfunctions.)

Genitourinary complications after SCI&D are common. Some of these complications include recurrent infections, stones, incontinence, and high pressure voiding.

Within the first year after the injury, most will have had at least one urinary tract infection.

A spinal cord injury as low as S4 can result in loss of volitional voiding (voiding under voluntary control). Several techniques may be used to avoid incontinence and minimize infections. A person may use intermittent catheterization, indwelling or suprapubic catheters or, (if male) condom catheters. Other voiding techniques include anal sphincter stretch to promote relaxation of the external urethral sphincter and detrusor compression via Crede maneuver (pressure applied over the lower abdominal area over the bladder). (Voiding dysfunction; DC 7542; See also 38 CFR 3.350 (e) (iv) (2) regarding SMC).

Two classes of medications are sometimes used to help manage voiding problems associated with SCIs. Depending on the level of the injury, a person may use either anticholinergic medications (including oxybutynin, propantheline and imipramine) or alpha-adrenergic antagonists (including prazosin, terazosin and doxazosin). Sometimes antihistamines and other medications used for general medical conditions can further compromise voiding in a person with a spinal cord injury.

Kidney stones are more common in people with SCIs. The incidence is approximately 8% by 10 years after injury. (DC 7508).

In men with SCIs, the degree of erectile dysfunction depends on the completeness and level of the injury. Men with incomplete lesions or injuries to the upper part of the spinal cord are more likely to retain reflex erectile capabilities than those with complete lesions or injuries to the lower cord. Though 75% of men with SCIs have some erectile capability, only 25% have erections sufficient for penetration.

Surgical treatment is sometimes used for genitourinary complications. These include denervation procedures, insertion of an artificial urinary sphincter, Teflon periurethral injections, sphincterotomy, and electrical stimulation.

7. Dermatologic (THE SKIN)

Dermatologic Skin breakdown / Pressure Ulcers

(AMIE WORKSHEET: SCARS)

(38 CFR 4.118 Schedule of ratings – skin)

Skin breakdown and pressure ulcers are common in people with SCI. (DC 7899-7803). If sensation is impaired, normal messages to shift weight while sitting are not transmitted. Throughout the day and night people with SCIs must remember to reposition themselves, or must be repositioned by someone else. More than half of those with SCIs experience skin breakdown or pressure ulcers at some point. Sepsis, cellulitis and osteomyelitis are potential complications of skin breakdown and pressure ulcers.

Without intervention, skin breakdown progresses through a series of four stages.

Stage I A Stage I pressure ulcer is an observable pressure related alteration of intact skin whose indicators as compared to the adjacent or opposite area on the body may include changes in one or more of the following: skin temperature (warmth or coolness), tissue consistency (firm or boggy feel) and/or sensation (pain, itching).The ulcer appears as a defined area of persistent redness in lightly pigmented skin, whereas in darker skin tones, the ulcer may appear with persistent red, blue, or purple hues.

Stage II is where there is partial-thickness skin loss. At this stage the ulcer can look like an abrasion, a blister or a shallow crater.

Stage III is when the ulcer includes either damage to or “necrosis” (tissue death) of the adipose tissue just beneath the skin.

Stage IV is where there is full-thickness skin loss with extensive destruction, and tissue necrosis. A Stage IV pressure ulcer can be associated with muscle or bone destruction.

Treatment may include nutritional supplements, debridement, dressing changes and educational programs with an eye towards implementing measures to decrease the chance for a recurrence. Proper cushions, mattresses, positioning and equipment are critical. Avoiding excess moisture including sweating and incontinence is important to prevent further skin breakdown. Meticulous skin care using proper skin hygiene with daily bathing using nonirritating nonalkaline soap helps. People with SCIs may need assistance to implement these measures.

8. Psychologic

(38 CFR 4.130 Schedule of ratings – mental disorders)

In people with SCIs, estimates of the incidence of depression range up to 25% for men and up to 47% for women. (DC 9434). They may use alcohol and substances to self-medicate for symptoms of depression. Paradoxically, prolonged alcohol and substance use can cause depression. In addition to depression, veterans may have PTSD as a result of the circumstances surrounding their injury. (DC 9411). Other frequent psychological problems after SCI include grief, denial, and anger. Many of these problems will dissipate on their own, particularly as people become more autonomous and informed.

Are You Ready To Rate?

While medical records may provide a complete picture of a veteran’s disability from a spinal cord injury, there may be times when you want to order a medical exam. You may want to verify that the exam you are requesting will give you the information you need by checking the exam worksheet at this intranet site: http://152.124.238.193/bl/21/rating/Medical/exams/index.htm

Feel free to use the General Remarks field “to ask” the examiner to answer specific questions regarding the veteran’s claim. Many conditions may be service connected on a secondary basis (38 CFR 3.310). The proper question to ask in these situations is: “Is it at least as likely as not that veteran’s (claimed or inferred) condition is a consequence of the spinal cord injury?”

The Brain and Spinal Cord worksheet is a good exam to order to start with evaluating disability from a spinal cord injury. http://152.124.238.193/bl/21/rating/Medica...ms/disexm07.htm

Language in the general remarks section could read as follows:

Please evaluate veteran for residuals of spinal cord injury. Please refer to additional AMIE worksheets as necessary to capture a complete picture of veteran’s disability (ies) from this condition. Please pay particular attention to Section C7 of Brain worksheet regarding bladder and bowel function.

References:

Spinal Cord Injury; Veterans Health Initiative, 2001

Depression Following Spinal Cord Injury: A Clinical Practice Guideline for Primary Care Physicians, Consortium for Spinal Cord Medicine; August 1998.

[Abstract - Prevalence And Characteristics Of Chronic Pain In Veterans With Spinal Cord Injury]

Volume 42 Number 5, September/October 2005

Pages 573 — 584

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Abstract - Prevalence and characteristics of chronic pain in veterans with spinal cord injury

Diana H. Rintala, PhD;* Sally Ann Holmes, MD; Richard Neil Fiess; Daisy Courtade, MA; Paul G. Loubser, MD

Michael E. DeBakey Department of Veterans Affairs Medical Center, Houston, TX; Baylor College of Medicine, Houston, TX

Abstract — To assess prevalence and characteristics of individual chronic (>6 mo) pain components in the veteran spinal cord injury (SCI) population, we conducted a telephone survey with 348 (66%) of 530 veterans with SCI who received care from one regional Department of Veterans Affairs SCI center during a 3 yr period. The short-form McGill Pain Questionnaire was used to assess qualitative properties of the pain experience. Other questions were used to assess frequency, duration, intensity, exacerbating factors, and effects on daily activities. Of the participants, 75% reported at least one chronic pain component. The majority (83%) of the chronic pain components occurred daily (mean = 27.4 d/mo) and lasted most of the day (mean = 17.4 h/d). Mean pain intensity in the week before the interview averaged 6.7 (on a 0 to 10 scale), while worst pain intensity averaged 8.6. Two-thirds (67%) of the chronic pain components interfered with daily activities. The most commonly selected pain descriptors were "aching," "sharp," "hot-burning," and "tiring-exhausting." More research is needed to identify better ways to prevent, assess, and treat chronic pain in the veteran SCI population.

Key words: adult, chronic, female, intractable pain, male, prevalence, spinal cord injury, survey, telephone, veterans.

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http://www.rehab.research.va.gov/jour/05/4...absrintala.html

[Self-management Of Chronic Pain_patient Handbook]

Self-Management of Chronic Pain_Patient Handbook

Chronic Pain Management Program

Long Beach VA Healthcare System

Richard W. Hanson, Ph.D., Program Director

http://www.long-beach.med.va.gov/LongBeach...k/cpmpbook.html

[Urgent Notice To All Veterans And Their Families. Va Being Sued, Come On Board!]

Here it is.....................Gary Kendall gary001ok@yahoo.com

[Ilp]

In order for someone to qualify for Independent Living Services program, you must be completely disabled & unfit for Vocational Rehabilitation program or employability.

Those with NSC-Pension Benefits may also qualify for ILS, if they are atleast disabled due to a 20% service connected condition.

If your unable to complete an ILS goal, you should ask for a re-evalution of your needs in daily living.

Allan

[Evaluating Disability Levels; Application Of 38 Cfr §§ 4.40 And 4.45]

DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 96-947

ACTIVITY: RATING

NAME: Fenderson v. West

ISSUE(S): Evaluating disability levels; Application of 38 CFR §§ 4.40 and 4.45; "Staged" ratings

ACTION BY COURT: Remand/Affirmance DECISION DATE: 1-20-99

FACTS: The Court of Veterans Appeals (Court or CVA) found that there were four issues on appeal, that all others had been abandoned. The first two of these issues were claims for increased evaluation of service-connected migraine headaches and left foot plantar fasciitis. Also, the disposition of the claims for service connection of right leg varicose veins and for an increased rating for residuals of right testicular surgery remained on appeal. The veteran was discharged from his second period of active duty in April 1988. In April 1988, he filed his claim for, among other things, service connection for migraines, heel pain and chronic pain in his testicles.

Migraine headaches: A May 1988 VA medical examination report showed a diagnosis of headaches, "probably tension and anxiety related". VA outpatient treatment notes from the same month showed a history of "headache every week for 3-4 years." The record showed private hospital emergency room reports for migraine headache pain in June 1988, November 1988, and February 1989. A VA medical center discharge note dated July 1988 showed "atypical" migraine headaches. In May 1989, the regional office (RO) granted service connection with a 10% evaluation for migraine headaches. VA progress notes dated in July 1989 showed the veteran had complained of headaches two to three times a week and had used Tylenol #3 for relief. In December 1989, the RO confirmed the evaluation given in the May 1989 decision.

The veteran filed a notice of disagreement (NOD) with the December 1989 decision. In March 1990, the veteran testified at a hearing that he suffered from migraine headaches two to three times a month and that the headaches lasted for three to four days. An April 1990 VA examination report showed history of migraine headaches two to three times a month of two to three days' duration. A May 1990 examination report showed an assessment of migraine headaches, "usually associated with severe vomiting". The examiner noted the headaches occurred once or twice a month and lasted two to three days and left the veteran "completely prostrated" at home. VA progress notes dated in October 1992 showed an assessment of migraine headaches "in remission". Ultimately on appeal, (after more than one remand) the BVA affirmed the 10% evaluation for migraine headaches which was effective from discharge from active service.

Left foot plantar fasciitis: The veteran was granted service connection for his left foot condition and assigned a noncompensable evaluation in a September 1988 rating decision. In November 1988, he filed an NOD with the evaluation. A May 1989 rating decision increased the veteran's evaluation to 10%. An April 1990 VA compensation and pension examination report showed a diagnosis of left foot plantar fasciitis with a history of recurrences of pain five to six times a month. A report from an April 1990 examination by a private orthopedist showed: "Left foot: Sensation intact, tender over the medial plantar surface . . . [;and] pes planus and mild heel valgus of less than five degrees." The examiner noted an impression of left foot plantar fasciitis and reported the veteran's history of "frequent" heel pain that was "worse with activities."

Right leg varicose veins: The RO first denied service connection for right leg varicose veins in April 1993. In a statement dated May 21, 1993, on a VA Form 1-646, the veteran's representative objected to the denial of service connection for the right leg varicose veins. A disagreement with the denial of service connection for the left leg (apparently a typographical error) was filed by the veteran and dated June 25, 1993. No statement of the case (SOC) was sent. A May 1994 BVA decision remanded the issue for development. The RO then sent an April 1995 supplemental statement of the case (SSOC) which addressed this issue. A substantive appeal, or VA form 9 was never filed by the veteran. The BVA subsequently determined it had no jurisdiction over the issue.

Right testicle condition: After remand from the BVA, the RO in December 1992, granted service connection for a right testicle condition and assigned a 0% disability rating, effective from November 7, 1989. The veteran filed an NOD with the evaluation. The RO issued an SSOC as to the right testicle condition following a denial of an increased rating in April 1995. The issue in the SSOC was framed as an "creased evaluation" for service-connected residuals of surgery to the right testicle. A substantive appeal was never received.

ANALYSIS: Evaluating migraine headaches: The veteran argued that evidence dating from the time of the original claim showed a greater frequency of migraine headaches, and thus warranted a higher disability rating for at least part of the period from 1988-94. The veteran contended that he was entitled to a rating based on his condition at the time that his claim was presented in 1989. The Court stated that the ruling in Francisco v. Brown, 7 Vet. App. 55, 58 (1994) that where "entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance" was "not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability." The Court noted that "at the time of an initial rating 'separate ratings can be assigned for separate periods of time based on facts found', a practice known as 'staged' ratings." The Court examined the evidence pertaining to migraine headaches and after reviewing the rating schedule determined that the veteran's "symptomatology would permit a 30% rating for at least the time period between June 1988 and May 1990 because the prostrating nature of the attacks had already been established by the 10% rating assigned in May 1989, effective April 1988." The Court remanded this claim to reconsider the evaluation consistent with its analysis. On remand, according to the Court, the BVA should provide for a current neurological evaluation, with all pertinent medical records made available to the examiner, "to assess the current frequency and intensity of the veteran's migraine attacks and to provide an opinion as to their frequency and intensity from May 1990 to present."

Left foot plantar fasciitis: The BVA rated the left foot plantar fasciitis by analogy under diagnostic code (DC) 5277, for "[w]eak foot, bilateral", which provides for a minimum rating of 10%. The Court noted that the BVA had also pointed out that another diagnostic code, that for "[f]oot injuries, other" could have been applied (DC 5284). The BVA also described 38 CFR § 4.40, which relates to functional loss due to inflammation or damage to parts of the exoskeletal system, and 38 CFR § 4.45, which relates to impairment to the joints. According to the Court, the BVA did not explain why these regulations were not applied. The CVA found that the diagnosis of foot pain which was "worse with activities" was evidence of pain on movement and functional disability due to pain that requires explicit consideration under sections 4.40 and 4.45. The Court remanded for readjudication supported by adequate reasons or bases concerning the application of those regulations.

Right leg varicose veins: the 646, filed by his representative, was in fact his substantive appeal. The Court held that the VA form 646, filed by the veteran's representative, was actually the NOD with the April 1993 RO denial of service connection for the right leg varicose veins and not a substantive appeal. As for the June 1993 statement being a substantive appeal, the Court pointed out that no SOC had yet been filed. The Court found that it was not a substantive appeal, but rather appeared to be a duplicate NOD. This finding was based on four reasons. First, the statement referenced the RO's letter which transmitted the April 1993 decision. Second, it expressed disagreement with the denial of service connection in the April 1993 decision. Third, the statement ended with a request that the RO send the veteran a statement of the case, which procedurally precedes the filing of the substantive appeal. Fourth, in its "Written Brief Presentation," dated December 5, 1995, the American Legion (the veteran's representative) did not list the claim as one of the questions at issue before the BVA. This suggests (but is not conclusive) that the veteran's representative did not believe that a substantive appeal had been filed as to the right leg varicose veins claim. Thus, the court held the BVA did not err when it decided this issue was no longer on appeal. The Court also suggested that the letter which is attached to the SOC and SSOCs should be changed to refer to the filing of a substantive appeal rather than of a Form 9, on which a substantive appeal may, but need not be, filed.

Right testicle condition: The Court found that the veteran had never received an SOC as to the issue of evaluation for the right testicle. The Court found that the SSOC "mistakenly treated the right testicle claim as one for an 'creased evaluation for service[-]connected . . . residuals of surgery to right testicle'" instead of "as a disagreement with the original rating awarded, which is what it was." Noting that the veteran had never received an SOC as to the issue of evaluation for the right testicle, the Court remanded the issue to the BVA for appropriate procedural compliance.

Judge Holdaway, concurring and dissenting in part, noted that the "SSOC clearly placed the appellant on reasonable notice of the denial of a compensable rating. The majority requires a degree of linguistic precision in the SSOC that is simply not required by statute or regulation."

IMPACT ON DECISIONMAKERS: This opinion is consistent with existing procedures relating to original claims. Decision makers are reminded that when evaluating an original claim for service connection, several evaluations may be warranted. In the event that a higher evaluation is followed by a lower evaluation, the application of 38 CFR § 3.105(e) is not for application, when evaluating an original grant of service connection.

When an NOD is filed with the evaluation on an original grant of service connection, RBA correctly frames the issue as "evaluation of service connected disability." If dictating or otherwise typing the issue in the case, continue to frame the issue as "evaluation of" and not "increased evaluation of" service connected disability.

When evaluating a condition under diagnostic codes relating to the musculoskeletal system, consider whether 38 CFR §§ 4.40 and 4.45 should be applied, particularly if an examination shows that the condition is "worse with activity" or contains words to that effect. In making this determination, General Counsel Precedent Opinion 9-98, Multiple Ratings for Musculoskeletal Disability and Applicability of 38 CFR § 4.40, 4.45, and 4.59, and General Counsel Precedent Opinion 36-97, Applicability of 38 CFR §§ 4.40 and 4.45 and 3.321(b)(1) in Rating Disability Under Diagnostic Code 5293 (Intervertebral Disc Syndrome) should be reviewed and applied if warranted.

RECOMMENDED VBA ACTION(S): This case should be provided to training coordinators as it may be a helpful tool when training how to evaluate original claims for service connection.

ACTION BY DIRECTOR, C&P SERVICE:

Approved?

_X_ ___ ______________/s/___________________ 3/23/99

Yes No Robert J. Epley Date

[Duty To Assist - Adequacy Of Examination]

Pond v. West

http://webisys.vetapp.gov/isysquery/irl59e4/1/doc

ISSUE(S): Duty to assist - adequacy of examination;

Reasons and bases - weighing all medical evidence of record

The Board found that the evidence of record was against service connection for the appellant's cervical spine condition. First, the Board found that the service and postservice medical records from 1950 to 1966 did not reference any complaints or treatment relating to a cervical spine injury. The Board found that those contemporary medical records were more probative than the appellant's testimony that he had experienced neck pain after his jeep accident. Second, the BVA rejected Dr. Denton's medical opinion that the appellant's cervical condition had been caused by the in- service jeep accident because Dr. Denton's opinion was (1) based solely on the veteran's history and (2) not supported by diagnostic or clinical findings.

///////////////////////////////////////////////////////////////////

the BVA's decision must include "a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1).

[T]he Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations.

A bare conclusory statement, without both supporting analysis and explanation, is neither helpful to the veteran, nor "clear enough to permit effective judicial review ", nor in compliance with statutory requirements.

Gilbert, 1 Vet.App. at 57. The BVA cannot reject evidence favorable to the claimant without providing adequate reasons and bases for its decision .

See Meyer v. Brown, 9 Vet.App. 425, 433 (1996). "Moreover, the Board may not rely on its own unsubstantiated medical conclusions to reject expert medical evidence in the record; rather, the Board may reject a claimant's medical evidence only on the basis of other independent medical evidence." Flash v. Brown, 8 Vet.App. 332, 339 (1995 ); see also Thurber v. Brown, 5 Vet.App. 119, 122 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).

"[F]ulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991).

ANALYSIS: Inadequate reasons and bases: The Court found that the Board of Veterans Appeals' (BVA) failure to address the opinion of the veteran, who is a medical professional and is therefore competent to provide medical nexus evidence, was error. The Court noted that this does not mean that the BVA cannot consider the personal interest the appellant-expert has in his own case, but the BVA is not free to ignore his opinion.

Duty to assist: The Court noted that twice VA requested medial examinations to discuss the etiology of the veteran's cervical spine disorder, and in both instances the medical examiners completely ignored those instructions. Since the veteran had submitted a well-grounded claim for a cervical spine disability, he is entitled to a thorough and contemporaneous medical examination that discusses the etiology of his cervical condition.

IMPACT ON DECISIONMAKERS: All decisionmakers should bear in mind that if a medical opinion is requested regarding the etiology of a disability, the medical examination report is inadequate if it does not give that opinion. All such reports should be returned to the medical professional to give the requested opinion. In addition, all evidence should be evaluated and weighed when the record is reviewed, including that of a claimant who is a medical professional and complete reasons should be given for any evidence which is not weighed favorably or found credible.

RECOMMENDED VBA ACTION(S): This is a good case for training on adequacy of examinations and on weighing evidence.

[Lichtenfels V. Derwinski]

Source: http://search.vetapp.gov/isysquery/3a3e216...706e5992/1/doc/

1 Vet. App. 484::Lichtenfels v. Derwinski::October 2, 1991

Rose M. Lichtenfels, Appellant, v. Edward J. Derwinski, Secretary Of Veterans Affairs, Appellee

1 Vet App 4841 Vet. App. 484; 1991 US Vet App LEXIS 981991 U.S. Vet. App. LEXIS 98

No. 90-705

July 8, 1991,

October 2, 1991, Decided

UNITED STATES COURT OF VETERANS APPEALS

Kramer, Ivers, and Steinberg, Associate Judges.

Counsel Joseph A. Violante was on the brief for appellant.

Robert E. Coy, Acting General Counsel, Barry M. Tapp, Assistant General Counsel, Andrew J. Mullen, Deputy Assistant General Counsel, and Deborah W. Singleton were on the brief for appellee.

Editorial Information: Prior History

On Appeal from the Board of Veterans' Appeals.

OPINION

Opinion by: KRAMER

{1 Vet. App. 485} Appellant seeks reversal of a March 29, 1990, Board of Veterans' Appeals (BVA) decision denying her both service connection for degenerative arthritis in her right foot and a separate, rather than combined, service-connected rating for degenerative arthritis in her spine. Because all the evidence of record and the applicable statutory and regulatory provisions support appellant's appeal, we reverse and remand for proceedings consistent with this opinion.

I

Factual Background

Prior to service, in 1971 and 1972, appellant fractured her right foot and right ankle, respectively. R. at 40-43, 47. From 1975 to July 1987, appellant served on active duty with the Air Force. R. at 10-13. Her induction examination revealed no abnormalities in any of her joints, inclusive of her feet and spine. Id. In addition, full recoveries from her pre-service right foot and ankle fractures were reported in a 1986 Air Force examination. R. at 40-43, 47.

During service, appellant incurred the following injuries to her right foot and ankle: On January 20, 1976, she sustained a mild sprain, with no significant swelling, to her right ankle. R. at 21. Appellant next injured her right foot on April 4, 1977. R. at 19-20. The injury resulted in no swelling, and the x-ray taken of the foot was negative. Id. On December 9, 1982, she twisted her right foot while running. R. at 24. As before, there was no swelling. The last in-service injury to appellant's right ankle occurred on August 10, 1986, occasioning only minor swelling. R. at 25.

On December 10, 1986, appellant, complaining of chronic pain in both knees, was examined by Air Force Dr. Jerrold G. Black who noted:

Swollen and painful joints refers to bilateral pain and degenerative joint disease in both knees. Diagnosed in 1986. Foot trouble refers to diagnosis of arthritis and elevated arch in right foot.

R. at 42 (emphasis added).

On March 16, 1987, appellant's diagnosis of degenerative joint disease (DJD) in both knees was confirmed by the United States Air Force Evaluation Board. R. at 49. In April 1987, the Air Force awarded appellant service connection and a 10-percent disability rating for DJD in each knee using Veterans' Administration (now Department of Veterans Affairs) (VA) Diagnostic Code (DC) 5003. R. at 33, 37; 38 C.F.R. § 4.71a, DC 5003 (1990). Appellant was discharged in July 1987. R. at 10-13.

On August 19, 1987, appellant applied to the VA for disability compensation for a number of conditions. R. at 29-31. Appellant underwent a VA examination on October 15, 1987, where, in relevant part, x-rays revealed that appellant had DJD in both knees, in the thoracic and lumbar regions of her spine, and in the first through the fifth interphalangeal joints of her right foot. R. at 62. With respect to appellant's back, Dr. Uma D. Sopori recorded:

[Appellant] usually has feeling of stiffness and aching over the lower back early in the morning with inactivity and [it] gets better as the activity and range of movements are increased.

. . . .

History of recurrent low back arthralgia [pain in joints] with no restriction of movements; no tenderness or muscle spasm.

R. at 59. Dr. Sopori also reported that appellant had pain in her right foot. Id.

As a result of this examination, the VA Regional Office (RO) on March 1, 1988, awarded appellant service-connected ratings for degenerative arthritis, but used DC 5010 (diagnostic code for traumatic arthritis) to do so:

DC 5010 Degenerative Arthritis right knee with painful motion and x-ray evidence of lumbosacral involvement 10-percent

{1 Vet. App. 486} DC 5010 Degenerative Arthritis left knee with painful motion 10-percent

R. at 76.

Appellant, contending that the RO should have given her separate ratings for the arthritis in her spine and for the arthritis in her right foot, filed a Notice of Disagreement with the RO and then appealed to the BVA. R. at 79, 90.

The BVA denied her appeal, stating in relevant part:

Objective evaluation of the lumbar spine revealed a normal range of motion without evidence of pain or tenderness.

Rose M. Lichtenfels, BVA 90-011722, at 4 (Mar. 29, 1990) (emphasis added). In its denial, the BVA determined as findings of fact:

1. Clinical data of record clearly and unmistakably establishes the preservice existence of a right foot fracture.

2. The veteran's preservice right foot fracture did not undergo an increase in the underlying pathology during service.

3. Degenerative arthritis of the right knee and degenerative joint disease of the lumbar spine are manifested by radiographic findings of degenerative joint disease, with a full range of motion with pain and tenderness of the right knee, and a full range of motion without pain or tenderness of the lumbar spine without incapacitating exacerbations.

and concluded as a matter of law:

1. Residuals of a fracture of the right foot clearly and unmistakably preexisted peacetime service; the presumption of soundness is rebutted.

2. Residuals of a right foot fracture were not aggravated by peacetime service.

3. The schedular criteria for a rating in excess of 10 percent for degenerative arthritis of the right knee and degenerative joint disease of the lumbar spine have not been met.

Id. at 6-7 (emphasis added). Appellant subsequently appealed to this Court.

II

Service Connection

Title 38 U.S.C. § 1111 (formerly § 311) provides:

For the purposes of section 310 [basic entitlement to service connection] of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

(Emphasis added.) Title 38 C.F.R. § 3.304(b) (1990) further addresses this presumption and provides that "only such conditions as are recorded in examination reports are to be considered as noted." Under these provisions, a veteran is entitled to service connection for a disease present in service unless the disease was noted in an examination report at the time of entrance into service or clear and unmistakable evidence shows that the veteran's disease pre-existed service and was not aggravated thereby. In this case, appellant's entrance examination shows no evidence of DJD in her knees, spine, or foot nor is there any evidence that appellant had DJD prior to service.

In addition, 38 U.S.C. § 1112(a)(1) (formerly § 312(a)(1)) creates a presumption of service connection where "a chronic disease becomes manifest to a degree of 10 percent or more within one year from the date of separation from such service." Title 38 U.S.C. § 1101(3) (formerly § 301(3)) includes arthritis as such a chronic disease, and the VA has classified DJD as arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1990) (DC 5003). Appellant was discharged in July 1987 and diagnosed by the VA in October 1987 as having DJD in her knees, right foot, and lumbar and thoracic spine. Thus, regarding the right foot and thoracic spine, the presumption attaches. (Because the VA has already granted service connection for appellant's knees and lumbar spine, these conditions are not at {1 Vet. App. 487} issue.) While 38 U.S.C. § 313(a) (1988) does permit this presumption to be rebutted by affirmative evidence, the BVA simply asserted that residuals of the right foot fracture pre-existed service and the presumption was rebutted. There is no evidence of record, however, that DJD was present prior to service and, thus, no support exists for the BVA's assertion. See Colvin v. Derwinski, U.S. Vet. App. No. 90-196, slip op. at 6 (Mar. 8, 1991). In addition, while the BVA did not address the issue of the presumption as it relates to the thoracic spine, there, again, is no evidence in the record that DJD was present prior to service.

Lastly, with respect to the right foot, for injuries and diseases which preexisted service, 38 U.S.C. § 1153 (formerly 353) provides:

A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.

The "natural progress of the disease" criterion contained in § 353 is amplified in 38 C.F.R. § 3.306© (1990):

© Peacetime service. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.

The natural progress of a disease must be shown by competent evidence which demonstrates that, regardless of any "contributing cause or influence peculiar to military service", the increase in the severity of the preservice condition resulted from the inherent evolution of the condition. Applied to the facts in this case, natural progress of the disease would defeat service connection for appellant's right foot DJD only where evidence demonstrates that appellant's pre-service fracture caused, without contributions from her in-service injuries, DJD in her right foot. Here, no such evidence of record exists. See Colvin, slip op. at 6. Where the facts are uncontradicted, the Court, in applying the legal standards discussed above to such facts, concludes, as a matter of a law, that appellant is entitled to service connection for degenerative arthritis of the right foot and the thoracic spine.

III

Ratings

Title 38 C.F.R. § 4.71a, DC 5003 (1990) describes how, under the rating schedule, degenerative arthritis is to be evaluated:

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below:

20 percent:

With X-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbation.

10 percent:

With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.

(Emphasis added.) Section 4.71a first provides a rating for actual (as opposed to {1 Vet. App. 488} painful) limitation of motion under DC 5200, etc. Since appellant has no actual limitation of motion, this provision does not apply. However, § 4.71a goes on to state that limitation of motion, while noncompensable under the standards contained in DC 5200, etc., may be otherwise compensable on the basis of a 10-percent rating for each major joint or groups affected (combined under DC 5003) where there is, among other things, painful motion. This reading is reinforced by 38 C.F.R. § 4.59 (1990) which provides in relevant part:

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc. on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification . . . . The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint . . . . The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

(Emphasis added.)

Read together, DC 5003, and § 4.59 thus state that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by x-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. As set forth in part I, above, the uncontradicted evidence is that appellant has backaches early in the morning and that she has recurrent arthralgia. (Arthralgia is defined as pain in a joint. See Dorland's Illustrated Medical Dictionary 147 (27th ed. 1985)). Thus, the BVA was clearly erroneous in concluding that the lumbar spine had a "full range of motion without pain". See supra at 3-4. Accordingly, the BVA incorrectly rated together as one rating the DJD in appellant's spine and right knee. With respect to at least the lumbar spine, this approach is not permitted under § 4.71a which requires a separate rating for painful motion of "each major joint or groups". Hence, based on the evidence presently of record, it appears that appellant would be entitled to a separate rating of no less than 10 percent for her lumbar spine DJD disability.

In regard to the DJD of the thoracic spine, because there is no evidence of pain, the BVA must also consider whether appellant is entitled to a rating under the "the absence of limitation of motion" standard contained in § 4.71a.

Lastly, because appellant, as set forth in part II, above, has been awarded service connection for DJD in her right foot, she is also entitled to be rated for it. In evaluating such rating, the BVA must consider the statement of Dr. Sopori that appellant had pain in her right foot and the applicability of a rating under § 4.71a based on, alternatively, limitation of motion by pain or on the absence of limitation of motion.

III

Conclusion

For the reasons stated above, the decision of the BVA is reversed and remanded for proceedings consistent with this opinion. In rating these disabilities on remand, the BVA is free to order another examination and appellant, if she so desires, is also free to introduce additional evidence of her disabilities. Cf. Colvin, slip op. at 6. The Court notes also that the RO and BVA appear to have incorrectly evaluated appellant's degenerative arthritis under DC 5010, the diagnostic code for traumatic arthritis. On remand, the BVA, in determining appellant's separate degrees of disability in her foot and spine, is instructed to evaluate these conditions under DC 5003, the appropriate diagnostic code for degenerative arthritis.

It is so ordered.

[In Evaluating Employability Claims, Debilitating Pain Should Also Be Considered Pursuant To 38 C.f.r. • 4.59]

UNITED STATES COURT OF VETERANS APPEALS

No. 90-583

Freddy, http://webisys.vetapp.gov/ISYSquery/IRLEF2...tmp/6/doc" Freddy J_ Odiorne, Appellant,_

Freddy J_ Odiorne, Appellant BVA 90-11724, at 9.

The Board, although concluding that appellant is not precluded from all forms of substantially gainful employment, failed to give reasons or bases for its determination. Although the Board stated that appellant's "unemployed status does not establish that he is unemployable, since lack of employment may result from a variety of causes, not consistent with unemployability," it is appellant's contention that the sole cause of his current unemployment and his inability to find any new employment is his left-knee disability. In his "Statement in Support of Claim," he mentioned that the pain in his knee

is severe enough that it has caused [him] problems in finding a job. I have been unemployed since 1986; and can find no

employer who will hire me, master's degree included. I have applied through city, county, [and] state agencies, has [sic] no hiring offers from any of them. I cannot stand [one] minute without severe pain - that's why I had to quit coaching in 1985 .

R. at 87. The Board must address appellant's allegations and discuss why it finds appellant employable. See 38 C.F.R. • 4.17 (1991).

In evaluating appellant's pension claim, the Board must also give more attention to the decision of the Department of Health and Human Services (Social Security). Although the Social Security decision regarding appellant's unemployability is not controlling for purposes of a final VA determination, it is relevant to the present claim. See Collier v. Derwinski, 1 Vet.App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The evidence is relevant to the determination of appellant's ability to secure and follow a substantially gainful occupation under 38 C.F.R. • 4.17. As we stated in Collier:

[T]he BVA cannot ignore or disregard relevant evidence in the record. See Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). If it discredits evidence, the BVA must give adequate reasons or bases for doing so. See Sammarco v. Derwinski, 1 Vet.App. 111, 112 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 ( 1990) (quoting International Longshoremen's Assoc. v. National Mediation Board, 870 F.2d 733, 735 (D.C.Cir. 1989)).

Collier, 1 Vet.App. at 416. In evaluating employability claims, debilitating pain should also be considered pursuant to 38 C.F.R. • 4.59 ( 1991). See Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Martin v. Derwinski, 1 Vet.App. 411, 413 (1991). Here neither the rating board nor the BVA addressed appellant's pain in its evaluations.

III. Conclusion

For the reasons stated above, the decision of the BVA is AFFIRMED as to appellant's left-knee condition but VACATED as to the Board's erroneous finding of fact that appellant's left-knee arthritis was not present until 15 years after service and as to appellant's pension claim, and those matters are REMANDED for proceedings consistent with this opinion.

[Cfr (return The Report)]

And in every case I have seen, VA notifies the veteran and his service rep that it is going to seek an IMO (I think this is either in the regs or M21/M21R)and, when it comes back, gives them 60 days to comment on it.

Ten yrs ago, I was sent to a VAMC C&P by a VA examiner, his opinion service connected, "all" issues before the BVA now. His comments included,"as my symptoms & complaints have been consistant since the 70's.

Two months later after the VARO recieved the examiners opinion, they scribbled on a note & sent it over to a staff consultant at another VAMC, stating they couldn't get an answer from this other C&P examiner. This examiners opinion was not favorable & the basis for the denial used ", The Vet had no history of complaints utill the 90's",is what the opinion & the denial said

"THREE" days later, the claim was denied on the basis that the, "ONLY" medical opinion of record, was not favorable is what they claimed.

The next "THREE" SOC's pumped out by the DRO, rubber stamped the same basis for denial.

Couple yrs ago, Dr bashes IMO's he submited, was completely tossed asside by the RO on a remand. They requested an IMO from another VA consultant. This consultants basis to not serviceconnect my health issues, was that I didn't have any health complaints untill the 70's according to him.

Due process should never be confused with what the DVA provides as a claims process.

lies & deception to defraud veterans is much closer to the truth.

Allan

PS........it's good to see you post Alex.

[Urgent Notice To All Veterans And Their Families. Va Being Sued, Come On Board!]

PLEASE, forward, repost, and distribute as widely as possible!

URGENT NOTICE to all Veterans and their families. VA being sued, come on board!

Has the Veterans Administration ever:

1) Made you wait a year or more to see a doctor,

2) Made you wait a year or more to get medical treatment or testing,

3) Denied you PTSD evaluation or treatment,

4) Denied you herbicide exposure (Agent Orange, ect.) evaluation or treatment,

5) Denied you Traumatic Brain Injury evaluation or treatment,

6) Caused or assisted you to become/remain homeless due to denial of care or housing,

7) Denied you radiation exposure evaluation or treatment,

8) Refused to explore possible medical causes for your ills,

9) Denied you medical care of any sort,

10) Denied your service connected disability claim, stating anything similar to “no medical diagnosis”

11) Failed to refer you to a medical specialty provider for a specialty condition,

12) Treated you for a medical condition without recording an actual diagnosis,

13) Stated there was no medical diagnosis of your condition that they did or are treating you for,

14) Denied you the right to compensation for travel costs to VA appointments,

15) Denied you overnight lodging after you traveled a long distance to attend a scheduled appointment,

16) Lost any of your records – military, claim or VA medical,

17) Failed to exhaustively search for records of your military service or medical treatment,

18) Denied you some medication or treatment stating it was not “formulary” or available through the VA,

19) Denied – through an administrator - any medication or treatment your VA Primary Physician recommended,

20) Denied any medication or treatment through your VA Primary Physician as not available through the VA,

21) Cause you to become angry, depressed, bitter, or frustrated through any failure to properly attend medical issues,

22) Denied your access to the Board of Veterans Appeals by a local administrator closing your complaint,

23) Violated your Veterans’ rights in any way?

Opportunity to be named as a member of the class.

Veterans Administration is being sued for:

Conspiratorial Deprivation of Civil Rights Under Color of Law

and

Intentional Infliction of Emotional Distress

Filed in the United States District Court for the District of Idaho, on March 1, 2007 at 11:48 AM, this case has not yet been assigned a case number.

Veterans need HUNDREDS if not THOUSANDS of Veterans and family members to sign on to this action to force it to remain live and to force positive improvement into the VA!

It is necessary to swamp the court with Veterans’ demands to be added to this litigation in order to deprive this court of the option of “sweeping this issue under the rug.” Any Veteran or any family member of a Veteran who has been negatively effected emotionally by VA failures or refusals to properly treat the Veteran can become a class member of this litigation.

To add yourself as a member of the class and claim a portion of any resulting damages awarded – there is no filing fee for this – send the following letter to Cameron Burke, USDC Court Clerk, 550 W. fort St., MSC 042, Boise, ID 83724.

“Cameron Burke, Court Clerk:

I wish to be added – as a member of the named class – to the litigation Gary Kendall v US Dept. of Veterans Affairs, Et Al filed on Thursday, March 1, 2007 at approximately 11:48 AM.

I am reserving the right to amend the respondents listing and the original complaint as the specifics of my complaints are more fully developed during discovery or hearing.”

Be sure to gain a notarization of your signature, keep a copy for your own files, and email Gary Kendall at gary001ok@....

You will be added to the update list and kept appraised of the progress of this litigation.

As Veterans demanding improvement changes within the VA that recognizes our honorable service to this nation – and more importantly will force the VA to properly treat our fellow future Veterans, we all have this opportunity to respond within the next thirty days and move this issue into a class action with several hundred or over a thousand named Veterans as members of the class.

It is time that we showed the VA and the US Congress that we will settle for nothing less from the VA than 100 percent fast, friendly, fulfillment of Veterans’ Congressionally mandated rights!

Will you join your voice to this demand?

Gary Kendall, USAF Sgt. Vietnam Era, disabled Veteran, Veterans’ Rights activist

[S. 1537 Parkinson¡¦s Disease Research Education And Clinical Centers; Multiple Sclerosis Research Education And Clinical Centers]

BEFORE THE

COMMITTEE ON VETERANS¡¦ AFFAIRS

U.S. SENATE

MAY 11, 2006

Good Morning Mr. Chairman and Members of the Committee:

Thank you for inviting me here today to present the Administration¡¦s views on several bills that would affect Department of Veterans Affairs (VA) programs that provide veterans benefits and services.

S. 1537 Parkinson¡¦s Disease Research Education and Clinical Centers; Multiple Sclerosis Research Education and Clinical Centers

Mr. Chairman, I will begin by addressing S. 1537. This bill would require VA to establish six Parkinson¡¦s Disease Research, Education, and Clinical Centers (PADRECCs) and two Multiple Sclerosis Centers of Excellence (MS Centers). The bill prescribes detailed requirements for the centers. It would provide that any such center in existence on January 1, 2005, must be designated as a PADRECC or MS Center under this law unless the Secretary determines that it does not meet the bill¡¦s requirements, has otherwise not demonstrated effectiveness in carrying out the purposes of a PADRECC or MS Center, or has not demonstrated the potential to carry out those purposes effectively in the reasonably foreseeable future. The centers would also need to be geographically distributed. Finally, the Secretary could designate a facility as a new PADRECC or MS Center only if a peer review panel finds that the facility meets the requirements of the law, and recommends designation.

VA does not support S. 1537 because it is unnecessary; the Department is already in full compliance with the substantive requirements of this bill. VA recommends that Congress await an ongoing evaluation of the existing PADRECCs before it considers whether to mandate that VA either continue their operation or designate new centers. Additionally, VA is concerned that statutory mandates for these ¡§disease specific¡¨ centers has the potential to fragment care in what is otherwise a well-designed, world class integrated health care system. I am increasingly concerned about the proliferation of this disease specific model and its impact on patient care and VA¡¦s integrate health care model. As it relates to a particular disease, I believe that it is much more important for VA to disseminate the best in evidence based practices across its health care system than to establish centers that provide care for a particular disease.

VA currently has PADRECCs at six sites-- San Francisco, California; Richmond, Virginia; Philadelphia, Pennsylvania; Houston, Texas; Los Angeles, California, and Puget Sound/Portland, Oregon (a combined site). Those sites served a total of 18,500 patients in fiscal year 2004. We are currently conducting an evaluation of PADRECCs¡¦ effectiveness in disseminating best practices, impact on patient outcomes, and the types of organizational structures that contribute to effectiveness. The study will be completed in 2007. Until this study is complete, VA believes that it would be unwise to mandate continued operation of these or additional PADRECCs . VA will, of course, share the results of the evaluation with Congress to assist in determining the need for legislation in the future.

For similar reasons, VA also does not support establishing new specialty centers for the care of veterans with multiple sclerosis. VA is well aware that Parkinson¡¦s disease and multiple sclerosis are prevalent in the veteran population, particularly among aging veterans. However, the nature of battlefield injuries is changing, and VA is now treating many new veteran patients with complex polytrauma syndromes, including brain injuries, limb loss, and sensory loss. Treating such disorders, and the mental and emotional disorders that accompany them, requires an interdisciplinary approach that moves beyond the focus on a single disease. By mandating new ¡§education, research, and clinical centers¡¨ that are disease-specific, flexibility to respond to changing combinations of related conditions is reduced. It is also important to note that the ¡§models¡¨ on which PADRECCs and MS Centers are based, the successful Geriatric Research, Education and Clinical Center (GRECC) and Mental Illness Research, Education and Clinical Center (MIRECC) programs, were not as narrowly-focused on a disease process but addressed a wide gamut of issues facing a significant portion of the veteran population.

Source: http://veterans.senate.gov/index.cfm?FuseA...620&hID=202