14-39 956
14-39 956
| Board of Vet. App. | Mar 17, 2017Background
- Veteran served Aug 1952–Jul 1954; appealed a May 2013 RO decision granting service connection for lumbar degenerative joint disease with myositis but assigning a 20% rating.
- Board previously denied multiple claims in Nov 2015; Court vacated and remanded (JMPR) only the four issues here (lumbar rating, psychiatric disorder, cervical spine, and TDIU) in Aug 2016.
- VA examiner (May 2013) found forward flexion limited to 40° with painful motion beginning at 15°, muscle tone increase, guarding/spasm, and functional loss (instability of station, disturbance of locomotion, interference with sitting/standing/weight-bearing).
- Records show progressive non-service‑connected Multiple System Atrophy–Parkinsonism (MSA‑P) leaving the Veteran wheelchair‑/bedridden; private physician and spouse submitted lay and medical statements describing severe back pain, limited activity, and post‑service cervical degenerative changes.
- Board found duty to assist satisfied for the lumbar rating issue and upgraded the lumbar spine rating to 40% (but no higher); remanded cervical spine, psychiatric disorder, and TDIU claims for additional development and VA opinions consistent with the JMPR and McLendon framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Initial rating >20% for service‑connected lumbar spine disability | Veteran (via counsel) argued current 20% fails to capture functional loss, pain, instability, and other symptoms; requested extraschedular consideration if needed | VA/Board argued evidence must meet specific ROM or ankylosis criteria for higher ratings; schedule and DeLuca factors applied | Granted increase to 40% based on forward flexion ≤30° (painful motion at 15°) and functional loss; extraschedular referral denied (schedule adequate) |
| 2. Service connection for acquired psychiatric disorder | Counsel argued private and VA records show depression/anxiety related to back pain and require VA exam/opinion | Board noted prior 2013 exam was inadequate/inconsistent with records and JMPR required development | Remanded for new psychiatric exam/opinions on service connection, secondary service connection to lumbar disability, and aggravation |
| 3. Service connection for cervical spine disorder | Veteran asserts in‑service fall/strain and CT reporting degenerative cervical changes support nexus | VA previously found no current cervical diagnosis or inadequate reasons for not examining; JMPR found McLendon criteria may be met | Remanded for VA cervical spine exam/opinion (considering CT, private opinion, lay statements) |
| 4. Entitlement to TDIU | Counsel argued unemployability is tied to service‑connected disabilities | VA considered TDIU intertwined with outcomes of above claims | Remanded as inextricably intertwined with cervical and psychiatric claims; development pending those outcomes |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (discusses VA notice and duty‑to‑assist principles)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (VA joint motion/Court guidance on ROM testing requirements under 38 C.F.R. § 4.59)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (functional loss factors and consideration of weakened movement, fatigability, incoordination, pain on movement)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (criteria triggering VA duty to provide a medical examination)
- Thun v. Peake, 22 Vet. App. 111 (2008) (standard for extraschedular referral under 38 C.F.R. § 3.321(b))
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (reasonable doubt rule in veterans benefits adjudication)