CARLTON H. INGRAM, APPELLANT, v. DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, APPELLEE.
No. 23-1798
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
Decided March 12, 2025
On Appeal from the Board of Veterans’ Appeals
Before PIETSCH, BARTLEY, and LAURER, Judges.
Louis J. George, of Arlington, Virginia, for the appellant.
Andrew D. Countryman, with whom Richard J. Hipolit, Deputy General Counsel; Mary Ann Flynn, Chief Counsel; and Mark D. Vichich, Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
BARTLEY, Judge: Veteran Carlton Ingram appeals through counsel a November 29, 2022, Board of Veterans’ Appeals (Board) decision that denied entitlement to a back disability evaluation greater than 20% and left ankle disability evaluation greater than 10%. Record (R.) at 5-20.1 This appeal is timely, and the Court has jurisdiction to review the Board decision pursuant to
I. FACTS
Mr. Ingram served in the U.S. Army from July 1985 to August 1992 with reserve service from November 1993 to October 1994. R. at 3581, 4678.
In May 2012, Mr. Ingram underwent VA examinations for his left ankle and back disabilities, during which the examiner noted that the veteran took over-the-counter medication for pain relief for both disabilities. R. at 4429, 4436-37. In August 2012, a VA regional office (RO) granted service connection for back and left ankle disabilities, assigning each an initial 10% evaluation, effective March 16, 2011. R. at 4409-13. Mr. Ingram then filed a Notice of Disagreement, challenging the back and ankle evaluations, R. at 4329-31, and in March 2015 timely perfected an appeal to the Board, R. at 2694; see R. at 2730-70 (February 2015 Statement of the Case). In April 2015, he consented to “long-term opioids for pain.” R. at 2042 (capitalization altered).
During a September 2017 Board hearing, Mr. Ingram testified that his May 2012 examinations did not correctly reflect his disabilities’ severity; for instance, he indicated that although the examiner noted that his back range of motion (ROM) was 90 degrees, he could not bend all the way over while standing up. R. at 2407-08; see R. at 4437 (May 2012 back examination). He testified that a doctor had recommended back surgery, that his back and ankle symptoms had worsened since the May 2012 examinations, and that he took tramadol and wore ankle and back braces. R. at 2408-14.
After the Board hearing, Mr. Ingram filed claims for lower extremity radiculopathy secondary to the back disability, prompting VA to afford him a back examination in October 2017. During this examination, the veteran reported medication use for symptom management and recurrent back pain impacting his ability to bend, lift, sit, stand, and walk. R. at 1730. The examiner indicated that Mr. Ingram experienced pain in flexion, extension, and rotation movements, which limited ROM and caused functional loss. R. at 1731.
In June 2018, the Board, based on the veteran‘s testimony and finding that the October 2017 VA back examination was inadequate, remanded the back and ankle claims for VA to obtain new examinations. R. at 1419. In October 2019, Mr. Ingram underwent VA back and ankle examinations. R. at 1171-87. As to the back, the examiner noted that flares significantly limited the veteran‘s functional ability, causing him to miss work. R. at 1172-73. As to the ankle, the examiner noted the veteran‘s report of functional loss associated with prolonged standing and walking, R. at 1181, but opined that the pain he demonstrated did not cause functional loss, R. at 1182.
In April 2020, the RO increased the veteran‘s back evaluation to 20%, effective October 30, 2019. R. at 1144. In January 2021, the Board denied higher evaluations for both disabilities. R. at 720-34. Mr. Ingram timely appealed to this Court, which in January 2022 granted the parties’ joint motion for remand, which required that the Board address the adequacy of the October 2019 VA examinations regarding functional loss and additional limitation of motion during flares. R. at 579-88; see R. at 589 (Court order granting parties’ motion). In May 2022, the Board remanded the claims for VA to obtain new examinations. R. at 559-64.
During July 2022 VA examinations,4 the examiner noted that the veteran‘s back and ankle flares occur frequently and were alleviated by medications, R. at 108, 120, and opined that they significantly limit functional ability, R. at 112, 124. In a September 2022 addendum, he noted that the back and ankle flares result in increased pain. R. at 57.
The Court notes that throughout the above proceedings, Mr. Ingram consistently reported using pain medication to control back and ankle symptoms. See, e.g., R. at 1975 (VA medical note indicating that the veteran took acetaminophen), 2081-82 (VA emergency department note
In the November 2022 decision on appeal, the Board granted a 20% evaluation for the back disability effective March 16, 2011–earlier than the previously assigned date of October 30, 2019. R. at 5; see R. at 1144. The Board denied a back disability evaluation greater than 20% and an ankle disability evaluation greater than 10%. R. at 5. Mr. Ingram timely appealed to the Court.
II. PRELIMINARY MATTER
As a preliminary matter, the Secretary concedes that remand is warranted for the back disability because the Board failed to address favorable VA treatment records documenting flexion at 30 degrees or less, which may result in assignment of a higher back evaluation. See Appellant‘s Brief (Br.) at 15-16; Secretary‘s Br. at 7. In all cases before it, the Board must analyze the credibility and probative value of evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff‘d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Court agrees that failure to address favorable VA treatment records regarding the back condition is indisputable Board error. See id. The Court therefore accepts the Secretary‘s concession that remand is warranted in this regard and will require the Board to address the
However, this conclusion does not resolve the parties’ primary dispute regarding the meaning and application of Jones in the musculoskeletal disability context and whether, as to Mr. Ingram‘s service-connected musculoskeletal conditions, the Board was required to discount the beneficial effects of medication when the relevant rating criteria do not explicitly contemplate medication use.
III. PARTIES’ ARGUMENTS
Mr. Ingram argues that the Board erred in denying higher evaluations for his musculoskeletal disabilities because it failed to discount or subtract the beneficial effects of medication when evaluating both disabilities. Appellant‘s Br. at 14-24. He asserts that DCs 5237 and 5271 that apply to his back and ankle disabilities, respectively, do not address the effects of medication and therefore Board should have determined the beneficial effects of those medications and discounted them when evaluating his disabilities, pursuant to Jones, 26 Vet.App. at 63, and McCarroll v. McDonald, 28 Vet.App. 267 (2016). Appellant‘s Br. at 18.
The Secretary makes two arguments in response. One is a general argument concerning how the Court should interpret its own caselaw and the other is specific to musculoskeletal disabilities as a category. First, he contends that Jackson v. McDonough prohibits the Board from considering the beneficial effects of medication when assessing the service-connected disability severity because “‘VA may not rely on factors outside the rating criteria, including the use of medication, unless the rating criteria contemplate the use of medication.‘” Secretary‘s Br. at 11 (quoting Jackson, 37 Vet.App. 87, 92 (2023)). Second, as to musculoskeletal disabilities specifically, he argues that Jones should not apply because
In reply, Mr. Ingram asserts that the Secretary‘s interpretation of Jackson directly conflicts with our longstanding Jones and McCarroll precedent cases. Reply Br. at 2-7. He also, inter alia, counters the Secretary‘s assertion that applying Jones would be redundant because regulations and caselaw concerning musculoskeletal evaluation already address worst-case scenarios. Reply Br. at 8.
IV. ANALYSIS
First, we address the Secretary‘s argument that the Court‘s precedent decision in Jackson impacts our prior precedent, the Jones and McCarroll decisions, altering how the Board should approach evaluating a service-connected disability where evidence demonstrates that a veteran takes medication for that condition. Today we make clear that Jackson has no negative or alterative impact on the holdings in Jones and McCarroll, which remain good law. Jackson did not impose any checks on or changes to the Court‘s caselaw concerning evaluation of disabilities that are treated with medication.
Jones dealt with the Board‘s evaluation of a veteran‘s irritable bowel syndrome (IBS) under DC 7319, which does not mention medication. The Court in Jones concluded that when relevant rating criteria do not explicitly contemplate a veteran using medication to allay symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used. 26 Vet.App. at 61. And, on the other hand, when the relevant rating criteria do contemplate medication use, the Board need not discount those beneficial effects in assigning an evaluation. Id. In applying this holding, the Court determined that the Board in Jones had erred because it evaluated Mr. Jones‘s IBS based on the improved level of functioning achieved at least partially through the use of medication, despite the complete lack of rating criteria instruction that it do so. The Board did not, as it should have, base its evaluation on his baseline level of functioning without the use of medication.
A few years later, the Court issued McCarroll, with facts that provided a counterpoint to Jones. McCarroll addressed the Board‘s evaluation of a veteran‘s hypertension under DC 7101, where the rating criteria do contemplate medication use. 28 Vet.App. at 276. The Court in McCarroll essentially reinforced the holding in Jones, concluding that the Board did not err when it considered the beneficial effects of medication because, as noted, those criteria contemplate medication being used. Id.
In 2023, the Court in Jackson examined a veteran‘s evaluation for service-connected diabetes under DC 7913. In its holding, the Court explained that “[i]f DC 7913 does not specifically contemplate the effects of medication . . . then the Board may not rely on improvements from medication to award a rating when evaluating diabetes. If, on the other hand, DC 7913 does contemplate the effects of medication, then Jones doesn‘t apply.” Id. at 92. And the Court then concluded that, because there is explicit mention of insulin medication in DC 7913, the rating criteria contemplate the beneficial effects of medication, and the Board did not err in relying on improvements from medication when assigning an evaluation for diabetes. Id. at 93-95. Notably, in Jackson, the Court recognized that McCarroll was “built on the foundation of Jones” and it “reaffirmed” that VA may not evaluate a disability by relying on factors outside the rating criteria, such as the beneficial effects of medication when medication is not mentioned or contemplated by the rating criteria. Id. at 92 (emphasis added).
The Secretary offers a twisted interpretation of the above-quoted language in Jackson, concluding that applying Jones to Mr. Ingram‘s case would be legal error. Secretary‘s Br. at 11. He argues that when the rating criteria do not mention medication, assigning an evaluation that considers the veteran‘s non-medicated level of impairment would be outside the bounds of the rating criteria because the criteria don‘t mention medication. See id. at 8-9 (taking language from Jackson out of context). But this misreading is unavailing because the Court was clear in Jones that “the Board commit[s] legal error by considering the effects of medication on the appellant‘s [disability] when those effects were not explicitly contemplated by the rating criteria.”10 26 Vet.App. at 61. And we reaffirmed that holding in Jackson, see 37 Vet.App. at 92; indeed, we could not have done otherwise given that Jones was a precedent panel decision. Furthermore, we note that the Secretary‘s argument does not make logical sense and would involve VA adjudicators rating in a manner directly opposed to the Secretary‘s purported position—taking a veteran‘s
Next, we address the Secretary‘s alternative argument, that, in his words, because special regulations apply when VA evaluates musculoskeletal conditions, such conditions are already evaluated in light of worst-case scenarios, that is, flare-ups, and Jones should not apply. Secretary‘s Br. at 12. The Secretary argues that musculoskeletal flare-ups are tantamount to a veteran‘s unmedicated state and that “§ 4.40 ensures [that joints are] rated on a worst-case scenario . . . in which the ameliorating effects of medication, if any, are not present.” Id. Secretary‘s counsel at oral argument indicated that medications eliminate, not just alleviate, pain and that a veteran taking medication will not experience flare-ups. Oral Argument at 1:02-1:04. He asserts that § 4.40 implicitly discounts beneficial effects of medication and an interpretation otherwise would unlawfully require the Board to adjudicate a “hypothetical disability.” Id. at 42:22-43:00.
Before analyzing the Secretary‘s argument though, the Court will provide a summary of the unique features of VA musculoskeletal evaluations, based on regulations and caselaw. An individual musculoskeletal evaluation is based on the rating criteria set forth in the relevant DC in
The general rating formula applicable to Mr. Ingram‘s back and ankle disabilities is based on an assessment of the limitation of motion caused by the disabilities and, the parties agree, do not reference medication. See
But, as noted, the Secretary argues that the special musculoskeletal regulations, along with Sharp, 29 Vet.App. 26, Mitchell, 25 Vet.App. 32, and DeLuca, 8 Vet.App. 202, already account for worst-case scenarios and so discounting the benefits of any back and ankle disability medication taken by Mr. Ingram is unnecessary. Secretary‘s counsel at oral argument contended that the July 2022 VA examination took into consideration that medications were alleviating factors for Mr. Ingram. Oral Argument at 1:02-1:03. He argued on this basis that, because the examination complied with legal authority and mentioned alleviating factors, it provided a full disability picture for the Board for evaluation purposes and the Board was therefore not required to discount again the beneficial effects of medication. Id. The Secretary‘s argument is unavailing.
Although the examination mentioned generally that medications were alleviating factors, it did not provide information that the Board could employ to satisfy Jones. And in its assignment of evaluations, the Board did not consider, for example, whether Mr. Ingram was taking medication(s), whether his ROM improved with medication use, and, if so, to what extent. Nor did the Board address whether flare-up frequency lessened with medication and, if so, to what extent. The Board‘s silence on these issues constitutes error in failing to comply with the tenet set forth in Jones. See Tucker, 11 Vet.App. at 374; see also Deloach v. Shinseki, 704 F.3d 1370, 1380-81 (Fed. Cir. 2013) (holding that remand is generally warranted where the Board has not yet performed necessary fact-finding or explicitly weighed the evidence of record).
Furthermore, the Court notes that Mr. Ingram‘s medical records reflect that he suffered from flare-ups even while on medication for his back and ankle disabilities. During an October 2017 back examination, the veteran reported taking tramadol and Motrin and still had flares that
And these records directly counter the Secretary‘s argument that the Board complied with VA regulations and Court caselaw in assessing Mr. Ingram‘s disability picture. See Oral Argument at 1:02-1:03. The Secretary overlooks that evidence tends to show that Mr. Ingram‘s medications, which range from opioids to over-the-counter drugs, while reducing symptoms and alleviating his back and ankle pain, see R. at 108, 120, 1730, do not eliminate his symptoms or obviate his flares. In fact, to “alleviate” pain does not mean to eliminate it; rather, alleviation means that pain is lessened. See NEW OXFORD AMERICAN DICTIONARY 42 (3d ed. 2010) (defining “alleviate” as “to make (suffering, deficiency, or a problem) less severe“). As noted, medical records throughout the appeal period appear to reflect that, despite consistently taking medications, Mr. Ingram suffered from back and ankle flares. Thus, the evidence at the very least suggests, although the Court does not so find, that Mr. Ingram‘s musculoskeletal disabilities may be evaluated as more severe if they are untreated by medication or, as relates to his appeal, if the beneficial effects of medication are discounted so that he is evaluated on his baseline without those beneficial effects.
With all of this in mind, the Court must reject the Secretary‘s alternative argument that Jones should not apply to the evaluation of musculoskeletal conditions. The Secretary‘s argument ignores that the Court‘s holding in Jones complements caselaw concerning the evaluation of musculoskeletal conditions because VA could not assess a veteran‘s worst-case scenario, including a flare up, if it was also factoring in the beneficial effects of medication. Thus, we hold that Jones applies in the evaluation of musculoskeletal disabilities where the relevant DC does not reference medication as a factor in evaluation.
Applying this holding to Mr. Ingram‘s case, although it is clear from the record that Mr. Ingram takes medication to alleviate his back and left ankle symptoms, and although the Board cited Jones in its decision, indicating that it was aware of caselaw requiring the discounting of beneficial effects of medication, the Board did not acknowledge, let alone discuss and discount,
On remand, Mr. Ingram may present additional arguments and evidence to the Board in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for [the Board] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
V. CONCLUSION
Upon consideration of the foregoing, the Court will SET ASIDE the portions of the November 29, 2022, Board decision denying a back disability evaluation above 20% and a left ankle disability above 10% and REMAND those matters for further development and readjudication consistent with this decision. The balance of the appeal is DISMISSED.