08-25 673
08-25 673
| Board of Vet. App. | Jun 16, 2017Background
- Veteran served in USMC (1993–1996) and US Army (1998–2004); appeal stems from a November 2007 RO rating decision.
- Board previously (March 2014) awarded service connection for fibromyalgia and cervical lordosis and remanded lumbar spine issues for further development.
- In December 2015 the AOJ implemented service-connection awards; a July 2016 SSOC erroneously readjudicated increased-rating claims for those conditions, but no timely NOD was filed.
- The Veteran seeks an increased rating (>10%) for lumbar degenerative disc disease (DDD) and entitlement to TDIU; the TDIU claim is inextricably intertwined with the lumbar rating issue.
- The February 2016 VA exam obtained after the Board remand was found inadequate because it failed to provide required range-of-motion (ROM) findings in active, passive, weight-bearing, and nonweight-bearing contexts and did not provide retrospective ROM for the appeal period.
- The Board REMANDED the lumbar DDD claim (and deferred TDIU) for additional development: obtain records, a new VA exam addressing full ROM (active/passive; weight-bearing/nonweight-bearing) including retrospective opinion, then readjudicate potential neurological ratings and TDIU.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to >10% rating for lumbar DDD | DDD is more severe than current 10% rating warrants; ROM and functional loss support higher rating | Current record/exam does not adequately establish greater limitation; prior exam incomplete | Remanded for adequate exam and retrospective ROM opinion; claim not decided on merits |
| Entitlement to TDIU | Veteran unable to maintain substantially gainful employment due to service-connected conditions | TDIU cannot be properly adjudicated until underlying disability severity (lumbar/neurological) clarified | Deferred and remanded as inextricably intertwined with lumbar rating; to be adjudicated after development |
| Whether AOJ could readjudicate increased ratings for fibromyalgia/cervical lordosis in SSOC | N/A (no NOD filed) | AOJ readjudicated those issues in SSOC | Board lacks jurisdiction over increased-rating claims for those conditions due to absence of timely NOD; not accepted |
| Adequacy of February 2016 VA examination | February 2016 exam sufficient to evaluate impairment | Exam omitted required ROM testing in active/passive and weight/nonweight-bearing and lacked retrospective opinion | Exam found inadequate under 38 C.F.R. § 4.59 and Correia; remand ordered for a compliant exam and retrospective opinion |
Key Cases Cited
- Percy v. Shinseki, 23 Vet. App. 37 (establishes that absence of a timely NOD is a jurisdictional bar to Board review)
- Correia v. McDonald, 28 Vet. App. 158 (requires ROM findings in active/passive and weight/nonweight-bearing for joint examinations)
- Harris v. Derwinski, 1 Vet. App. 180 (claims inextricably intertwined must be adjudicated together)
- Kutscherousky v. West, 12 Vet. App. 369 (Veteran has right to submit additional evidence/argument on remanded matters)