12-35 303
12-35 303
| Board of Vet. App. | Mar 17, 2017Background
- Veteran served on active duty from July 1986 to June 1990 and appeals a rating for service‑connected degenerative joint disease, lumbar spine.
- RO issued a February 2012 rating decision; Board denied an evaluation in excess of 10% in January 2016.
- Veteran appealed to the Court of Appeals for Veterans Claims; the parties filed a Joint Motion for Remand (JMR) in October 2016, returning the issue to the Board.
- The parties and Board found the January 2012 VA spine examination inadequate because it failed to address whether measurements were taken during flare‑ups, quantify ROM loss from pain/flare‑ups, and adequately explain impact on employability.
- The Veteran did not expressly raise a total disability based on individual unemployability (TDIU); psychiatric notes mention employment limitations but do not constitute a TDIU claim for Rice purposes.
- The Board ordered remand for additional development: obtain records, schedule a new VA examination with detailed ROM and pain/flare‑up analysis (including degree of additional ROM loss if feasible), assess ankylosis/neurologic impairment, and describe incapacitating episodes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to a rating in excess of 10% for lumbar degenerative joint disease | Veteran contends pain, flare‑ups, and functional loss warrant >10% | VA relied on prior exam concluding 10% or less; exam lacked adequate rationale for flare‑ups and work impact | Remand for a new, adequate VA spine examination and further development to determine proper rating |
| Whether the January 2012 VA examination was adequate | JMR/ Veteran argued it failed to state if exam occurred during flare‑ups, quantify ROM loss from pain, or explain work‑impact opinion | VA previously relied on that exam but did not provide necessary analysis | Board agreed exam was inadequate and directed a new exam with specific instructions |
| Whether TDIU should be considered as part of the increased‑rating claim | Veteran reported occupational limitations in treatment notes and a statement | VA/Board noted TDIU was not expressly raised or reasonably raised by record for Rice purposes | Board declined to adjudicate TDIU on remand since it was not raised; advised claimant how to file if desired |
| Whether additional records and development are required before readjudication | Veteran’s representative raised a potential separate condition (pituitary/growth) in briefing | VA noted that new claims must be filed on prescribed forms; pending claim limited to lumbar spine increased rating | Remand ordered to obtain VA treatment records, allow Veteran to submit private records, complete new exam, then readjudicate |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (claims reasonably raised include TDIU)
- Mitchell v. Shinseki, 25 Vet. App. 32 (examiners must address functional loss from pain; pain on motion is not limited motion)
- DeLuca v. Brown, 8 Vet. App. 202 (pain and functional loss considerations in VA examinations)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant may submit additional evidence on remand)