lumbosacral Mayhew V. Principi

[allan]

00-1410

Mayhew.410.wpd

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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

[sixthscents]

OK.. lets see... the accident occured in 1944, the CAVC in 2000, 56 years later. The man was assumedly say 17 when the incident occured...so 17+56=73.....

Well yeah I suppose a 73 year old dude might have some problems flexing his back....

Anyway... again....

No EMG

No MRI

No Myleogram

all thats referenced is x-ray and range of motion...

some IMO, but nothing significant... well nothing to match any OBJECTIVE testing anyway...

again - wheres the goinometer? hehe

This guy is filing for an increase to an already rated and service connected injury with no objective medical evidence to show worsening... like lets say hed had an MRI in 95, then one in 2000... or one in 1990, and then one in 2000

Wouldnt that make his case more compelling if, in fact there was significant change?

Further, he cant bend, then he can, and some doctor (and I really have never seen this) stated he couldn't because of his (fat) abdomen........

See this is the crud you get when you DONT have enough testing....

However some people avoid testing because they are afraid of the results.......

So what is accomplished... a BVA remand where they MAY finally order an EMG, or MRI, or something... or most likely will just send him to another ortho intern, who'll do the basic motion tests yet again, and lead to similarly unspectacular results yet again, and another appeal........

(sigh)

honestly... why didnt the dude take the physicians guide section that covers the back, and have an IMO done to VA requirements/form on it using a goinometer? I didnt see the first reference to one.... wouldnt that be a significant point?

Great job on the appeals... whoever is handleing that is doing well, but... they are failing on the critical points yet again