13-05 332
13-05 332
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served in the Army National Guard (1989) and U.S. Army (1990–1996) and is service‑connected for a chronic lumbar (lumbosacral) sprain rated 10%.
- RO continued the 10% rating in a July 2010 decision; appeal reached the Board. A portion of a prior Board denial was vacated and remanded by the Court via a JMPR, limited to the increased‑rating claim.
- Veteran and spouse testified describing chronic daily back pain, occasional spasms, limited lifting (~10 lbs), limited walking (~100 yards), and episodic inability to get out of bed.
- Multiple VA examinations (2009, 2012, 2015, 2016) documented forward flexion generally 70–80°, combined thoracolumbar ROM 170–200°, localized tenderness/spasm but no neurologic deficits, no intervertebral disc syndrome, and no abnormal gait or spinal contour.
- VA exams addressed DeLuca factors (repetitive use/flare‑ups); the May 2016 exam (performed after JMPR) was found adequate though the examiner could not conclusively quantify additional limitation from flare‑ups.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether rating >10% warranted for chronic lumbar sprain under DC 5237 | Veteran: pain, spasms, limited ROM, and flare‑ups cause greater functional loss warranting ≥20% | VA: objective ROM and exam findings do not meet 20% criteria; no neurologic deficits or IVDS; flare‑ups not shown to produce greater functional loss | Denied — evidence does not meet criteria for >10% at any time on appeal |
| Whether functional loss from flare‑ups/repetitive use (DeLuca) supports higher rating | Veteran: lay testimony and history show increased limitation on use/flare‑ups | VA: exams considered flare‑ups but medical evidence does not show additional limitation reaching 20% criteria | Denied — no competent medical evidence showing flare‑ups cause requisite additional limitation |
| Whether extraschedular referral (38 C.F.R. §4.16/Thun) required | Veteran: symptom severity and occupational impact make schedular ratings inadequate | VA: Veteran’s symptom picture is contemplated by the rating schedule; no exceptional picture or combined disabilities | Denied — schedular criteria adequately contemplate disability picture; no referral warranted |
| Whether VA satisfied duties to notify and assist (including adequacy of exams) | Veteran/rep: May 2016 exam insufficient on flare‑ups and pain testing (Correia/DeLuca concerns) | VA: provided notice, obtained necessary records, May 2016 exam adequate and complied with DeLuca/Mitchell; passive/weight‑bearing issues addressed | Held adequate — VA satisfied notice/assistance duties; exam adequate for adjudication |
Key Cases Cited
- Dyment v. West, 13 Vet. App. 141 (1999) (substantial compliance standard for remand directives)
- Owings v. Brown, 8 Vet. App. 17 (1995) (Board must apply law, not sympathy)
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board need not discuss every piece of evidence)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (consider functional loss from pain, flare‑ups, repetitive use)
- Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (exam must address functional loss during flare‑ups/repetitive use)
- Mittleider v. West, 11 Vet. App. 181 (1998) (signs attributable to service‑connected disability when effects inseparable)
- Esteban v. Brown, 6 Vet. App. 259 (1994) (pyramiding/overlap of symptomatology)
- Thun v. Peake, 22 Vet. App. 111 (2008) (extraschedular referral threshold)
- Johnson v. Brown, 9 Vet. App. 7 (1996) (use of §4.40/4.45 with ROM‑based codes)
- Burton v. Shinseki, 25 Vet. App. 1 (2011) (§4.59 application beyond arthritis when raised)
- D'Aries v. Peake, 22 Vet. App. 97 (2008) (adequacy of VA examination opinions)
- Vasquez‑Flores v. Shinseki, 580 F.3d 1270 (2009) (VA notice requirements)
- Sickels v. Shinseki, 643 F.3d 1362 (2011) (presumption of competence and adequacy of VA examiner)