13-23 457
13-23 457
| Board of Vet. App. | Sep 18, 2017Background
- Veteran served active duty Mar 1982–Sep 1989 and filed an increased‑rating claim for cervical and lumbar spine disabilities in Dec 2012.
- RO initially assigned 10% (cervical) and 20% (lumbar); in Aug 2016 RO awarded two separate 10% ratings for bilateral lower‑extremity radiculopathy effective Apr 11, 2016 and increased lumbar to 40% effective Apr 11, 2016.
- VA examinations (2013 and Apr 11, 2016) provided range‑of‑motion, strength, reflex, and radiculopathy findings; Apr 2016 exam found L2–L4 radiculopathy bilaterally with hip flexion 3/5.
- Board applied the General Rating Formula for spine, the IVDS (intervertebral disc syndrome) rules, scar criteria, and the nerve‑injury diagnostic criteria to evaluate increased‑rating entitlement.
- Board denied ratings above the current schedular levels for cervical and lumbar spine (except the earlier RO increase to 40% from Apr 11, 2016 was sustained), awarded staged ratings for bilateral radiculopathy (left 10% from Dec 13, 2012–Apr 10, 2016; right noncompensable before Nov 21, 2013, 10% Nov 21, 2013–Apr 10, 2016; both 20% from Apr 11, 2016).
- TDIU was not decided on the merits and was REMANDED to the RO for development because, after the grants here, the Veteran met schedular criteria for TDIU consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cervical spine merits >10% rating | Cervical pain/flare‑ups and functional loss justify higher rating | Objective ROM and exam findings do not meet criteria for >10% under DC 5242 | Denied: 10% is correct for entire period |
| Whether lumbar spine merits >20% before Apr 11, 2016 or >40% from Apr 11, 2016 | Pain, flare‑ups, and functional limitations support higher rating and scar compensation | ROM, IVDS incapacitating‑episode criteria, and scar exam do not meet higher/scar‑compensable thresholds | Denied: no >20% pre‑Apr11/ no >40% post‑Apr11 beyond RO award; scar noncompensable |
| Whether left lower‑extremity radiculopathy warrants >10% from Dec 13, 2012 | Radicular symptoms and history of post‑surgical tingling justify higher rating earlier | Record shows only mild (10%) anterior crural nerve incomplete paralysis prior to Apr 11, 2016 | Granted 10% from Dec 13, 2012–Apr 10, 2016; no higher rating warranted |
| Whether right lower‑extremity radiculopathy is compensable before Nov 21, 2013 | Veteran’s reports of bilateral radiation support earlier compensable radiculopathy | Pre‑Nov 21, 2013 records lack objective neurologic findings showing incomplete paralysis | Denied prior to Nov 21, 2013; 10% from Nov 21, 2013–Apr 10, 2016 |
| Whether bilateral radiculopathy merits higher ratings from Apr 11, 2016 | Apr 11, 2016 exam shows moderate paralysis/weakness supporting >10% | Apr 11, 2016 findings (3/5 hip flexion but preserved other strength/reflexes/sensation) correspond to moderate, not severe or complete paralysis | Granted 20% each from Apr 11, 2016; not higher |
| Whether TDIU should be granted | Veteran claims unemployability due to combined service‑connected disabilities | Record needs RO development now that schedular criteria met | REMANDED to AOJ for development and readjudication |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (duty‑to‑assist/compliance discussion)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (range‑of‑motion testing requirements under 38 C.F.R. § 4.59)
- Francisco v. Brown, 7 Vet. App. 55 (1994) (present level of disability controls when evaluating increase)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (permitting staged ratings where disability changes during the appeal period)
- AB v. Brown, 6 Vet. App. 35 (1993) (rating period and effective‑date principles for increased‑rating claims)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (obligation to obtain relevant VA records)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant’s right to submit evidence after remand)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1991) (benefit‑of‑the‑doubt rule)