Michael L. Chavis v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 18-2928

MICHAEL L. CHAVIS, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued November 20, 2019 Decided April 16, 2021)

Zachary M. Stolz and Kaitlyn C. Degnan, who was on the brief, both of Providence, Rhode

Island, for the appellant.

Clifton A. Prince, Appellate Attorney, with whom James M. Byrne, General Counsel; Mary

Ann Flynn, Chief Counsel; and Sarah W. Fusina, Deputy Chief Counsel, were on the brief, all of

Washington, D.C., for the appellee.

Before BARTLEY, Chief Judge, and MEREDITH and FALVEY, Judges.

BARTLEY, Chief Judge, filed the opinion of the Court. MEREDITH, Judge, filed an

opinion concurring in part and dissenting in part.

BARTLEY, Chief Judge: Veteran Michael L. Chavis appeals, through counsel, an

April 20, 2018, Board of Veterans' Appeals (Board) decision that denied entitlement to a disability

evaluation higher than 40% for a low back strain with herniated nucleus pulposus at the L4-L5

spinal level and denied entitlement to evaluations higher than 20% for right and left lower

extremity radiculopathy associated with the lumbar spine disability. Record (R.) at 2-15.1, 2 This

1

In the same decision, the Board granted increased initial evaluations for the bilateral radiculopathy from

10% to 20% and entitlement to a total disability evaluation based on individual unemployability (TDIU) from

February 1, 2017. R. at 12-13. Because these determinations are favorable to Mr. Chavis, the Court will not disturb

them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) ("The Court is not permitted to reverse findings of fact

favorable to a claimant made by the Board pursuant to its statutory authority."), aff'd in part, dismissed in part sub

nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009). In addition, the Board remanded the issue of entitlement

to TDIU on an extraschedular basis prior to February 1, 2017. R. at 14-15. Because a remand is not a final decision of

the Board subject to judicial review, the Court does not have jurisdiction to consider this issue at this time. See Howard

v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order);

38 C.F.R. § 20.1100(b) (2020).

2

The Secretary filed the record of proceedings on June 20, 2019, but subsequently filed an amended record

on July 2, 2019. All references to the record of proceedings refer to the amended record.

matter was referred to a panel of this Court, with oral argument, 3 to address whether the

requirement of ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine

(General Rating Formula), 38 C.F.R. § 4.71a (2020), can be met with evidence of the functional

equivalent of ankylosis during a flare. We hold that it can. Because the Board did not consider

whether Mr. Chavis's symptoms resulted in the functional equivalent of ankylosis, the Court will

set aside that portion of the April 2018 Board decision that denied a higher evaluation for the

lumbar spine disability and remand that matter to the Board for adjudication consistent with this

decision.

In addition, we address a second question: whether the Board had jurisdiction over the

evaluation of Mr. Chavis's radiculopathy disabilities. Because we conclude that the Board had

jurisdiction over the radiculopathy increased-evaluation issue, and because the parties agree that

the Board's determination on the merits of that issue was not supported by adequate reasons or

bases, the Court will set aside that portion of the April 2018 Board decision that denied evaluations

higher than 20% for right and left lower extremity radiculopathy and remand that matter to the

Board for adjudication consistent with this decision.

I. FACTUAL BACKGROUND

Mr. Chavis served honorably in the U.S. Army from May 1975 to April 1976. R. at 3106.

In August 1976, a VA regional office (RO) awarded service connection for a low back strain and

assigned an initial noncompensable evaluation. R. at 3810; see R. at 3820-21 (July 1976 VA

examination report reflecting a diagnosis of recurrent low back strain, negative Lasègue sign

bilaterally,4 and normal deep tendon reflexes).

In January 1999, the RO recharacterized the lumbar spine disability as a low back strain

with herniated nucleus pulposus at the L4-L5 spinal level and increased the evaluation to 20%.

R. at 3589-90. In its decision, the RO referenced a March 1998 MRI, noting that results were

"questionable whether [Mr. Chavis] had symptoms of a left L5 radiculopathy." R. at 3590.

3

Chavis v. Wilkie, U.S. Vet. App. No. 18-2928 (oral argument held Nov. 20, 2019),

https://www.youtube.com/watch?v=-1UWBM3uiEY) [hereinafter Oral Argument].

4

The Lasègue test is also called the straight leg-raising test. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY

993, 1871 (33d ed. 2019) [hereinafter DORLAND'S]. A positive Lasègue sign or a positive straight leg-raising test are

indications of lumbar radiculopathy. Id. at 1864; see R. at 3280 (December 2011 VA examination report describing

the straight leg-raising test and what constitutes a positive result).

2

In November 2008, Mr. Chavis filed a claim, asking VA to address the "[d]isability

classification for [his] lower back injury," R. at 3508, which the RO construed as a claim for an

increased evaluation for the lumbar spine disability, R. at 3463. Upon VA examination in

December 2008, he reported constant pain across the low back that radiated into both lower legs.

R. at 3474. He reported a current pain severity of 10/10 and noted that the pain was exacerbated

with physical activity and relieved by rest, but that "sometimes [he] can only lie in bed until [the

pain] goes away." Id. The examiner documented 20 degrees of lumbar flexion with pain at end

range as well as limited mobility in other directions of movement. R. at 3475. The examiner

additionally noted an antalgic gait and that, due to pain, Mr. Chavis used either a cane for

ambulation or a wheelchair for locomotion. R. at 3474. The examiner diagnosed lumbar

intervertebral disc syndrome (IVDS) of the sciatic nerve distribution and noted that Mr. Chavis

presented with sensory deficits in the left lower leg and foot,5 but noted normal reflexes and no

motor weakness. R. at 3475. The examiner noted a positive straight leg-raising test bilaterally but

no ankylosis. R. at 3474.

In a February 2009 decision, the RO increased the lumbar spine evaluation to 40% based

on the December 2008 examiner's documentation of forward flexion limited to 30 degrees or less.

R. at 3462-65; see 38 C.F.R. § 4.71a. In November 2009, Mr. Chavis filed a Notice of

Disagreement (NOD), seeking to "[a]ppeal claims on past claim on back problems," R. at 3439-

40, and, following a February 2010 Statement of the Case (SOC), R. at 3397-417, he perfected an

appeal to the Board in April 2010, R. at 3394.

Upon VA examination in December 2011, Mr. Chavis reported constant low back pain that

fluctuated in intensity "with no specific activity or movement" and resulted in "extreme" back pain,

leg weakness, and an inability to bend forward. R. at 3277. The examiner documented 35 degrees

of forward flexion with pain at end range, along with limited mobility in additional directions of

movement, which did not change with repetitive testing. R. at 3277-79. During the examination,

Mr. Chavis reported radicular pain, paresthesias, and decreased sensation in the left leg. R. at 3280-

81. However, following examination, the examiner noted that Mr. Chavis presented with left-sided

radiculitis secondary to the lumbar spine disability, not radiculopathy. R. at 3285; see R. at 3280

5

Although unclear, it appears that the examination report contains a typographic error, as the examiner

highlighted that sensory deficits in the left leg indicated a diagnosis of IVDS involving the right sciatic nerve. R. at

3475.

3

(recording a negative straight leg-raising test bilaterally), 3283-84 (referencing electromyography

and nerve conduction testing results). The examiner noted that Mr. Chavis's decreased sensation

in the left lower leg and foot was due to a 2006 left foot crush injury sustained at his work. R. at

3285; see R. at 3277 (noting that, following the 2006 injury, Mr. Chavis was treated with several

casts and later developed complex regional pain syndrome (CRPS)).

In January 2012, Mr. Chavis sought treatment for chronic low back pain that radiated into

the left anterior thigh. R. at 3268. At that time, he described "episodes" of pain that left him unable

to move, which he indicated occurred about five times per year. Id. He stated that when he is not

in an "episode," his pain level is at a 2/10, but when he is in an "episode," "his pain [is] a 50/10."

R. at 3269. The treating healthcare clinician noted normal range of motion, albeit with decreased

speed of movement. Id. The clinician concluded that Mr. Chavis was experiencing episodic

discogenic pain. R. at 3270.

In June 2012, the RO issued a Supplemental SOC (SSOC). R. at 3129-33. As relevant, the

RO indicated that the diagnosis of left lumbar radiculitis was added to Mr. Chavis's service-

connected disability as part of the lumbar disorder and was not a separate diagnosis. R. at 3132.

The RO stated that the December 2011 VA examiner "was clear that this diagnosis is based on

subjective symptoms and does not constitute a separate diagnosis of radiculopathy." Id.

During a December 2015 Board hearing, Mr. Chavis testified about the episodic nature of

his back and leg symptoms. Specifically, he described that, when he is experiencing a period of

increased symptoms, he is unable to move and is either confined to his bed or dependent on a

walker or wheelchair. R. at 3027-36. In describing the severity of several past episodes, he

recounted one episode in 1997 where he was confined to his bed for 8 months, R. at 3028, 3031-

32, and several other episodes that required calling for an ambulance to transport him out of bed

and to the hospital for treatment, most recently in 2003 or 2004, R. at 3027-28, 3036. He also

described radiating pain and numbness in his legs. R. at 3037, 3039-40.

In February 2016, the Board remanded the lumbar spine claim, in part, to obtain a VA

examination addressing the severity of the lumbar spine disability as well as to determine the

presence of neurologic manifestations. R. at 3011-15. Upon the subsequent VA examination in

February 2017, the examiner documented 70 degrees of pain-free forward flexion with no change

following repetitive testing. R. at 638. The examiner indicated that the examination was being

conducted during a flare-up and that Mr. Chavis's functional ability was not significantly limited

4

by pain, weakness, fatigability, or incoordination. R. at 639. The examiner also noted no signs of

radiculopathy, no ankylosis, and no IVDS. R. at 641-42. Following a review of conflicting medical

evidence, the examiner indicated that the lower extremity functional impairment noted during the

December 2011 examination was "only due to [the] left crush injury in 2006." R. at 648.

The examiner also indicated that Mr. Chavis demonstrated positive straight leg-raising

testing bilaterally, but no radicular pain or other signs or symptoms of radiculopathy. R. at 641.

Based on this apparent discrepancy, see supra n.4, the RO requested an addendum medical

opinion. R. at 82. In the November 2017 addendum opinion, the examiner clarified that Mr. Chavis

presented with symptoms of radiculopathy and specifically noted moderate numbness in both

lower legs resulting in moderate bilateral radiculopathy. R. at 82-83. She further indicated that the

bilateral radiculopathy was a progression of the previous diagnosis of low back strain with

herniated nucleus pulposus at the L4-L5 spinal level. R. at 83-84.

In December 2017, the RO issued an SSOC continuing the denial of an evaluation higher

than 40% for the lumbar spine disability. R. at 55-69. In January 2018, the RO awarded service

connection for right and left lower extremity radiculopathy as associated with the lumbar spine

disability and assigned an initial 10% evaluation for each leg. R. at 41-46, 50-54.6

In the April 2018 decision on appeal, the Board, as relevant, adjudicated three issues:

(1) entitlement to an evaluation higher than 40% for the lumbar spine disability; (2) entitlement to

an initial evaluation higher than 10% for left lower extremity radiculopathy associated with the

lumbar spine disability; and (3) entitlement to an initial evaluation higher than 10% for right lower

extremity radiculopathy associated with the lumbar spine disability.

With respect to the lumbar spine disability, the Board noted that Mr. Chavis could be

evaluated under either the General Rating Formula or the Formula for Rating IVDS Based on

Incapacitating Episodes (Incapacitating Episodes Formula), whichever resulted in a higher

evaluation. R. at 6. After reviewing the evidence, the Board found that the criteria for an evaluation

higher than 40% under either formula had not been met. R. at 10. The Board noted that, for a higher

evaluation to be warranted, "there must be evidence of either ankylosis of the spine[] or IVDS

treated by bed rest prescribed by a physician." Id. However, the Board found that "[n]either of

these symptoms is present." Id. The Board explained that the evidence indicated that Mr. Chavis's

6

Although this decision is dated in December 2017, R. at 50, the RO did not notify Mr. Chavis of its decision

until January 2018, R. at 41. The Court will refer to it as a January 2018 decision.

5

lumbar spine disability did not manifest in ankylosis and, although he reported episodes of flare-

ups of his back pain necessitating hospital treatment, none had occurred during the relevant appeal

period and there was no evidence that he was prescribed bed rest by a physician. Id. The Board

then "considered the provisions of [38 C.F.R. §§] 4.40 and 4.45," but found them not applicable

because "the [v]eteran already has the highest available rating based on restriction of motion."

R. at 10-11 (citing Johnston v. Brown, 10 Vet.App. 80, 85 (1997)).

The Board then found that it had jurisdiction over the appropriate evaluations for the

radiculopathy disabilities because "ratings for bilateral radiculopathy are part and parcel of the

claim for an increased rating for a lumbar spine disability." R. at 3. The Board noted that the

radiculopathy disabilities were assigned initial 10% evaluations under 38 C.F.R. § 4.124a,

Diagnostic Code (DC) 8520, which contemplates paralysis of the sciatic nerve, but increased those

evaluations to 20% based on the November 2017 examiner's opinion that the radiculopathy

disabilities were moderate in severity. R. at 11-12. The Board denied evaluations higher than 20%

because the veteran's radiculopathy was not moderately severe. R. at 12. This appeal followed.

II. LUMBAR SPINE DISABILITY

A. Arguments

Mr. Chavis argues that the Board erred in relying on Johnston to determine that §§ 4.40

and 4.45 did not apply to his lumbar spine evaluation. Appellant's Brief (Br.) at 8; see R. at 10-11.

He contends that the Court in Johnston found that the Board did not need to consider additional

functional loss due to pain, not because the appellant was receiving the maximum evaluation based

on limitation of motion, but because the appellant was receiving the maximum evaluation for the

particular DC. Appellant's Br. at 8-9. He further argues that, because "[a]n ankylosed joint presents

functional loss that manifests as complete limitation of motion," §§ 4.40 and 4.45 are for

application within the General Rating Formula because of the availability of higher evaluations.

Id. at 9. He additionally argues that the Board's failure to apply §§ 4.40 and 4.45 was prejudicial

because his disability more nearly approximates the functional equivalent of unfavorable

ankylosis. Id. at 10.

In response, the Secretary argues that the evidence of record, including the 2008, 2011, and

2017 VA examination reports, failed to demonstrate functional loss equivalent to a restriction of

range of motion contemplated by unfavorable ankylosis. Secretary's Br. at 11-14; see id. at 14

6

("Each examiner determined that [Mr. Chavis's] spine was not fixed in flexion or extension, even

when the examination was performed during a flare-up."). He additionally argues that the Board

properly relied on Johnston, which he asserts "plainly held that the Board does not err in its denial

of entitlement to an evaluation based on ankylosis, where ankylosis was not shown on multiple

examinations." Id. at 16 (citing Johnston, 10 Vet.App. at 84).

At times in his brief, the Secretary appears to contend that, even if a claimant could satisfy

the regulation by demonstrating the functional equivalent of ankylosis, the appellant here had not

done so. See, e.g., id. at 13 ("[Y]et no examination found ankylosis or the equivalent of fixation in

flexion or extension."). However, at oral argument, he affirmatively took the position that the

General Rating Formula does not contemplate the functional equivalent of ankylosis. Oral

Argument at 39:36-40:46, 42:19-43:50, 47:20-49:08, 51:37-52:12 ("[N]o caselaw or regulation

supports the finding of functional equivalency [of ankylosis.]"). He argued that, because of the

distinction between limitation of motion and ankylosis (consolidation of the joint resulting in

restriction of motion), the constructs of functional equivalency do not apply. Id. at 39:36-40:46,

47:20-49:08. In essence, the Secretary argues that, because ankylosis involves a restriction of

motion or consolidation of the joint, a claimant cannot demonstrate the functional equivalent of

ankylosis.

B. Analysis

1. Ankylosis and VA's Schedule for Rating Disabilities

Ankylosis is a medical term meaning "[i]mmobility and consolidation of a joint due to

disease, injury, or surgical procedure." DORLAND'S at 94; see STEADMAN'S MEDICAL DICTIONARY

95 (28th ed. 2006) ("Stiffening or fixation of a joint as the result of a disease process, with fibrous

or bony union across the joint."); CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989) ("A

stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention."). The

word "ankylosis" has been part of the Rating Schedule since it was published in 1919, when it was

titled "Schedule of Ratings for Amputations and Ankylosis." Although spine conditions were not

included in the 1919 edition, they were included in the 1925 edition, at which time the Rating

Schedule provided separate evaluations for "[a]nkylosis (complete fixation)" and for "[l]imitation

of motion." The Schedule for Rating Disabilities, Musculoskeletal System (1925). The provision

of separate evaluations for ankylosis and limitation of motion was maintained in the Rating

Schedule until VA adopted the General Rating Formula in 2003. See Schedule for Rating

7

Disabilities; The Spine, 67 Fed. Reg. 56509, 56510 (Sept. 4, 2002) (proposed rule); Schedule for

Rating Disabilities; The Spine, 68 Fed. Reg. 51454 (Aug. 27, 2003) (final rule).7

Spine disabilities other than IVDS are evaluated under the General Rating Formula.

38 C.F.R. § 4.71a, DCs 5235-5242. 8 With respect to disabilities involving the thoracolumbar

spine, the General Rating Formula provides evaluations as follows:

100%: Unfavorable ankylosis of the entire spine

50%: Unfavorable ankylosis of the entire thoracolumbar spine

40%: Forward flexion of the thoracolumbar spine 30 degrees or less; OR, favorable ankylosis

of the entire thoracolumbar spine

20%: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than

60 degrees; OR, the combined range of motion of the thoracolumbar spine not greater

than 120 degrees; OR, muscle spasm or guarding severe enough to result in an

abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or

abnormal kyphosis

10%: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than

85 degrees; OR, combined range of motion of the thoracolumbar spine greater than

120 degrees but not greater than 235 degrees; OR, muscle spasm, guarding, or localized

tenderness not resulting in abnormal gait or abnormal spinal contour; OR, vertebral

body fracture with loss of 50% or more of the height

38 C.F.R. § 4.71a. Under the General Rating Formula, an evaluation is based upon "orthopedic

findings," including ankylosis, limitation of motion, muscle spasm, guarding, and tenderness.

67 Fed. Reg. at 56511.

In 2002, when VA proposed to implement the General Rating Formula, it noted that

ankylosis had been defined by the then-current Rating Schedule as "bony fixation" but, while the

Rating Schedule differentiated between favorable and unfavorable ankylosis, it did not define

either term. Id. at 56510. Therefore, VA proposed to add the current Note (5) to define favorable

7

Ankylosis is not limited to spinal joints, but can occur in any joint, as is reflected throughout various DCs

within the Rating Schedule. See 38 C.F.R. § 4.71a, DC 5200 (shoulder), DC 5205 (elbow), DC 5214 (wrist), DCs

5216-5227 (digits of the hand), DC 5250 (hip), DC 5256 (knee), DC 5270 (ankle). Our analysis is limited to the

General Rating Formula, and we take no position on the application of the principle of functional equivalence to other

parts of the Rating Schedule.

8

IVDS is evaluated under either the General Rating Formula or the Incapacitating Episodes Formula,

whichever method is productive of a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

38 C.F.R. § 4.71a, DC 5243. Although the Board concluded that Mr. Chavis was not entitled to a higher evaluation

under the Incapacitating Episodes Formula, Mr. Chavis does not argue that the Board erred in this portion of its

analysis and the Court will not address it further. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that

the Court has discretion to deem unargued issues abandoned).

8

and unfavorable ankylosis, with unfavorable ankylosis being defined as a condition in which the

entire spine or an entire spinal segment is fixed in flexion or extension and the ankylosis results in

one or more associated complications. Id. at 56511; see 38 C.F.R. § 4.71a, General Rating

Formula, Note (5). 9 In its proposed rule, VA noted that the presence of additional symptoms,

"which may be indications for spinal surgery, represent disability greater than limitation of motion

of the spine alone." 67 Fed. Reg. at 56511. In contrast, ankylosis is considered favorable if the

fixation is in a neutral position (0 degrees) or does not result in an associated complication. See

38 C.F.R. § 4.71a, General Rating Formula, Note (5).

2. Ankylosis is an objective finding.

Despite the Secretary's assertion during oral argument that ankylosis is a diagnosis, see

Oral Argument at 35:15-:45, 37:25-:35; see also id. at 43:50-45:01 (characterizing consolidation

of the spine as a disease process),10 it is worth reiterating that VA considers ankylosis to be an

objective finding like limitation of motion, muscle spasm, guarding, and tenderness. 67 Fed. Reg.

at 56510 ("We propose to delete the seven diagnostic codes . . . that involve findings of ankylosis

or limitation of motion of the spine because, rather than representing conditions or diagnoses, they

are findings that are common to a variety of spinal conditions."); id. at 56511 ("[W]e propose to

evaluate all disabilities of the spine . . . using a general formula that will be based on the orthopedic

findings such as limitation of motion, ankylosis, muscle spasm, guarding, and tenderness, present

in the individual case."); see 38 C.F.R. § 4.71a, DC 5002 (describing ankylosis as a "residual[]" of

rheumatoid arthritis), VA Adjudication Procedures Manual (M21-1) III.iv.4.A.2.n (defining

ankylosis as "a condition of, or term used for the sign/symptom of, abnormal stiffness, immobility,

or abnormal bending of a joint"), M21-1 III.iv.4.B.1.a-c (describing ankylosis as a possible

"symptom" of rheumatoid arthritis), M21-1 III.iv.4.B.2.b-d (describing ankylosis as a possible

"symptom" of degenerative arthritis); see also R. at 10 (Board's characterization of ankylosis as a

"symptom").

9

The Note defines the list of complications as follows: difficulty walking because of a limited line of vision;

restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal

symptoms due to pressure on the costal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical

subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating

Formula, Note (5).

10

But see Oral Argument at 42:20-:35 (characterizing ankylosis as a "medical finding"); Secretary's Br. at

16-17 (characterizing unfavorable ankylosis as "the only symptom listed in DC 5237" warranting a 50% evaluation).

9

3. Sections 4.40 and 4.45 apply when evaluating joint condition severity for the

presence of the functional equivalence of ankylosis.

The Rating Schedule provides prefatory regulations under the umbrella heading of

"Musculoskeletal System" that are "intended to be used in understanding the nature of a veteran's

disability." Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016); see Lyles v. Shulkin,

29 Vet.App. 107, 117 (2017) (explaining that the prefatory regulations—including §§ 4.40 and

4.45—help "'explain how to arrive at proper evaluations'" for musculoskeletal disabilities (quoting

Petitti v. McDonald, 27 Vet.App. 415, 424 (2015))). Although any individual evaluation must be

"based on the criteria set forth in § 4.71a," Thompson, 815 F.3d at 786, a veteran may be entitled

to "a higher musculoskeletal evaluation than would otherwise be supported by mechanical

application of a given DC" when his or her disability is properly viewed through the lens of those

leading regulations, Lyles, 29 Vet.App. at 117.

Specifically, a veteran may be entitled to a higher evaluation where there is evidence that

his or her disability causes additional functional loss—i.e., "the inability . . . to perform the normal

working movements of the body with normal excursion, strength, speed, coordination[,] and

endurance"—including as due to pain. 38 C.F.R. § 4.40 (2020); see Mitchell v. Shinseki,

25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-06 (1995). Additionally, a

higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of

movement in different planes, including changes in the joint's range of movement, strength,

fatigability, or coordination. 38 C.F.R. § 4.45 (2020); see Mitchell, 25 Vet.App. at 37; DeLuca,

8 Vet.App. at 206-07. "Elevation of a veteran's musculoskeletal disability under either of these

methods, colloquially known as the DeLuca factors, is based on additional functional loss with use

or during flare-ups, which should, if feasible, be portrayed in terms of the degree of additional

range-of-motion lost." Lyles, 29 Vet.App. at 118 (citing DeLuca, 8 Vet.App. at 206).

Caselaw dictates that, when evaluating joint disabilities and their manifestations,

adjudicators must consider §§ 4.40 and 4.45 to fully understand the nature of a veteran's disability.

See Thompson, 815 F.3d at 785; Lyles, 29 Vet.App. at 117-18; see also Petitti, 27 Vet.App. at 424.

And our caselaw makes clear that application of the DeLuca factors may result in a higher

evaluation than one based solely on limited motion if a claimant demonstrates functional loss

equivalent to that contemplated by the higher evaluation. See Lyles, 29 Vet.App. at 117-18;

DeLuca, 8 Vet.App. at 206. Although in the past we have focused on application of the DeLuca

factors in the context of limitation of motion, nothing in those regulations or our caselaw suggests

10

that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in

essence, a complete limitation of motion. See DORLAND'S at 94. This is consistent with VA's aim

to "ensure that a claimant is properly compensated, but not overcompensated, for the actual level

of impairment." Lyles, 29 Vet.App. at 118 (citing Amberman v. Shinseki, 570 F.3d 1377, 1380

(Fed. Cir. 2009)).

The provisions of §§ 4.40 and 4.45 are for application when evaluating joint disabilities

and their manifestations, which may include ankylosis. Notably, § 4.45 directs adjudicators to

identify certain considerations when evaluating joint disabilities, including whether the joint

demonstrates less movement than normal. And it specifically identifies ankylosis among the

possible causes of less movement. 38 C.F.R. § 4.45(a). 11 Section 4.40 directs adjudicators to

consider the various ways functional loss manifests in musculoskeletal disabilities, including by

interfering with the normal working movements of the body with normal excursion. Moreover,

§ 4.40 provides that "functional loss may be due to . . . pain, supported by adequate pathology and

evidenced by the visible behavior of the claimant undertaking the motion." 38 C.F.R. § 4.40.

Accordingly, application of §§ 4.40 and 4.45 permits consideration under the General Rating

Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that

contemplated by ankylosis—in other words, if it is the functional equivalent of ankylosis. Accord

Johnson v. Brown, 9 Vet.App. 7, 11 (1996) (concluding that §§ 4.40 and 4.45 apply to DCs that

are "predicated on loss of range of motion").

Neither the Board nor the Secretary persuasively demonstrates that these regulations do

not apply when contemplating joint ankylosis. The Board based its conclusion on the Court's

decision in Johnston. R. at 10-11 (citing Johnston, 10 Vet.App. at 85). In Johnston, the appellant

was in receipt of the maximal 10% evaluation under 38 C.F.R. § 4.71a, DC 5215, which

contemplates limitation of motion of the wrist. Johnston, 10 Vet.App. at 84-85. The Board in that

case considered application of an evaluation under DC 5214, which contemplates ankylosis of the

wrist, but found no evidence of ankylosis, a finding the Court determined was not clearly

erroneous. Id. at 84-85 (noting that a VA examiner documented good mobility and no pain on

movement). On appeal, the appellant argued, and the Secretary agreed, that the Board failed to

11

The Secretary acknowledges that § 4.45 mentions ankylosis, but argues that the regulation directs

adjudicators to consider ankylosis only when a joint is ankylosed because, in his view, there can be no functional

equivalent of ankylosis. Oral Argument at 39:36-40:46.

11

consider functional loss due to pain; however, the Court found that a remand was not appropriate

because the appellant was already receiving the maximal evaluation under DC 5215. Id.

Here, the Board relied on Johnston as holding that §§ 4.40 and 4.45 are not for application

when a claimant already has the highest available evaluation based on limitation of motion. R. at

11.12 However, contrary to the Board's interpretation, Johnston does not stand for the proposition

that the DeLuca factors are not applicable when a claimant is receiving the maximal evaluation

based on limitation of motion. Instead, the Court in Johnston held that, when a claimant was

receiving the maximal evaluation for a joint disability not manifesting in ankylosis under a

particular DC, the Board's failure to consider functional loss under §§ 4.40 and 4.45 in evaluating

the disability under that DC was harmless error. Johnston, 10 Vet.App. at 85; see Spencer v. West,

13 Vet.App. 376, 382 (2000) (also concluding that the Board's failure to consider §§ 4.40 and 4.45

in evaluating a wrist disability was harmless where the appellant was receiving the maximal

evaluation under DC 5215 and there was no evidence of ankylosis).

In contrast to Johnston and Spencer, Mr. Chavis is not receiving the maximal evaluation

available under DC 5237 via the General Rating Formula, and he is arguing that his spine disability

results in the functional equivalent of ankylosis during flare-ups that render him unable to move.

Therefore, the Board's reliance on Johnston to conclude that §§ 4.40 and 4.45 were not for

application was incorrect.13

12

The Board specifically referred to Mr. Chavis having the highest evaluation based on "restriction of

motion," R. at 11; however, DC 5215—the operative DC in Johnston—instead uses the term "limitation of motion,"

38 C.F.R. § 4.71a, DC 5215 (1996). To that end, the Secretary emphasized during oral argument that ankylosis is not

just limitation of motion, but restriction of motion. Oral Argument at 40:16-:33. Because it is undisputed that Mr.

Chavis is not receiving the highest evaluation available for ankylosis and because the Board did not discuss ankylosis

in the same terms as argued by the Secretary, the Court assumes that the Board's use of "restriction of motion" was

intended to be synonymous with "limitation of motion," which is consistent with its analysis. Of course, if the Board

was using "restriction of motion" in the same manner as the Secretary—i.e., as synonymous with ankylosis—then the

Board's statement would be a clear misstatement of the facts.

13

In 1997, VA's Office of General Counsel arrived at a similar conclusion regarding Johnston vis-à-vis the

applicability of §§ 4.40 and 4.45 in determining the proper evaluation for IVDS under DC 5293, the predecessor to

DC 5243. VA Gen. Coun. Prec. 36-97 (Dec. 12, 1997) ¶¶ 4, 7. In that opinion, the General Counsel noted that the

Court in Johnston found that a remand was inappropriate to consider entitlement to a higher evaluation because there

was no evidence of ankylosis. Id. at ¶ 7. As a result, the General Counsel concluded that, even if a veteran was

receiving an evaluation equivalent to the maximal evaluation based on limitation of motion of the spine, consideration

of a higher evaluation would still be appropriate under DC 5293 if entitlement to the higher evaluation was supported

by the evidence. Id.

12

The crux of the Secretary's argument against the application of the DeLuca factors is based

on a distinction he makes between limitation of motion and restriction of motion; however, he fails

to persuasively argue why such a distinction precludes application of §§ 4.40 and 4.45. The

Secretary argues that VA has always considered ankylosis separate from limitation of motion,

noting, as discussed above, that the Rating Schedule historically provided evaluations under

separate DCs for limitation of motion of the spine versus ankylosis of the spine, a practice still

employed today for other joints. Because of this dichotomy, he argues that ankylosis requires

something more than limitation of motion. He further argues that, because ankylosis is

consolidation of the joint, it is not amenable to assessment of functional equivalence.

Even accepting the Secretary's premise that ankylosis is distinct from limitation of motion

and generally results in a greater level of functional impairment than that of limited motion,14 such

differences—which may be important considerations in determining whether a veteran's joint

disability actually manifests in functional impairment equivalent to ankylosis—do not explain why

§§ 4.40 and 4.45 should not apply when considering whether limitation of motion of a joint results

in the functional equivalence of joint ankylosis consistent with the regulatory language and

existing caselaw.

C. Application

The Board's determination of the appropriate degree of disability is a finding of fact subject

to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown,

10 Vet.App. 93, 97 (1997). In reaching a decision, the Board is required to consider all evidence

of record and to consider, and discuss in its decision, all "potentially applicable" provisions of law

and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a);

Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). Whether a certain law or

regulation was applicable to an undisputed set of facts is a question of law, which the Court reviews

de novo. Emerson v. McDonald, 28 Vet.App. 200, 206 (2016).

The Court concludes that the Board committed an error of law when it determined that

§§ 4.40 and 4.45 were not for application because Mr. Chavis was already receiving a 40%

evaluation for his lumbar spine disability, the highest evaluation available based on limitation of

motion. Therefore, the Board incorrectly foreclosed application of §§ 4.40 and 4.45 in evaluating

14

In this regard, the Court recognizes that the Rating Schedule generally provides higher evaluations for joint

ankylosis than joint limitation of motion.

13

Mr. Chavis's lumbar spine disability. Accordingly, the Court concludes that remand of the lumbar

spine claim is warranted for readjudication. See Tucker v. West, 11 Vet.App. 369, 374 (1998)

(holding that remand is the appropriate remedy "where the Board has incorrectly applied the law").

Mr. Chavis additionally argues that the VA examinations upon which the Board relied

contained insufficient information regarding the extent of his functional loss due to flare-ups.

Appellant's Br. at 16-20. The adequacy of a medical examination or opinion is a question of fact,

which the Court reviews for clear error. See 38 U.S.C. § 7261(a)(4); see D'Aries v. Peake,

22 Vet.App. 97, 104 (2008) (per curiam). The Board did not discuss the adequacy of the

examinations in its April 2018 decision, see R. at 2-15, and the Court may not decide that factual

matter in the first instance, see Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate

tribunals are not appropriate fora for initial fact finding.").

Nevertheless, the Secretary argues that the Board was not obligated to discuss the adequacy

of the examination reports because those reports appear adequate on their face. Oral Argument at

53:18-55:39. 15 To the extent that he argues that the Board made an implicit finding that the

examination reports were adequate, any such implicit finding would be in part predicated on the

erroneous legal conclusion that §§ 4.40 and 4.45 and considerations of functional loss during flare-

ups did not apply. Because we have determined that the Board's legal conclusion about functional

loss was incorrect, we cannot properly review any implicit determination regarding the adequacy

of the examinations. See D'Aries, 22 Vet.App. at 104. Mr. Chavis is free to raise those arguments

regarding the adequacy of the examinations to the Board upon readjudication.

III. RADICULOPATHY DISABILITIES16

A. Arguments

In his briefs, Mr. Chavis argued that the Board erred in denying higher evaluations for the

radiculopathy disabilities when it adopted the assessment of the November 2017 VA examiner

without articulating the standards it used to assign the 20% evaluations. Appellant's Br. at 20-25.

He argues that the Board's failure to articulate the standard it used to conclude that his disability

was moderate in severity—as opposed to moderately severe, the next higher level of severity in

15

To that end, Mr. Chavis argues that, at a minimum, the February 2017 examination report is patently

unreliable. Oral Argument at 10:30-13:13 (discussing alleged inconsistencies of the three examination reports).

16

Judge Meredith does not join in this part of the Court's opinion.

14

the Rating Schedule—renders its decision arbitrary and capricious. Id. at 23-24 (citing Johnson v.

Wilkie, 30 Vet.App. 245, 255 (2018)). The Secretary conceded that remand of the issue of

appropriate radiculopathy evaluations was warranted, agreeing that "the Board failed to disclose

the standard that it used to render its determination" that evaluations higher than 20% were not

warranted. Secretary's Br. at 18 (citing Johnson, 30 Vet.App. at 255).

Although the merits of the radiculopathy evaluations were not discussed at oral argument,

the Court asked the parties to address the Board's jurisdiction, and by extension the Court's

jurisdiction, to review the Board's decision regarding the appropriate radiculopathy evaluations.

Both parties agreed that the Board had jurisdiction over the radiculopathy evaluations. Oral

Argument at 31:06-32:33, 55:40-56:58. Additionally, the Secretary reaffirmed his position that the

issue of the appropriate evaluations should be remanded in light of the Board's inadequate reasons

or bases. Oral Argument at 55:40-56:58.

However, on January 16, 2020, the Secretary filed a "Notice of Clarification to the Court,"

clarifying that, although he was not challenging the Board's award of increased 20% evaluations

for the radiculopathy disabilities, "the Board technically did not have jurisdiction" over those

matters because Mr. Chavis did not file an NOD following the January 2018 RO decision that

awarded service connection and assigned the initial 10% evaluations for bilateral radiculopathy.

Following the Secretary's clarification, the Court, on April 30, 2020, ordered the parties to file

supplemental memoranda of law addressing the Board's jurisdiction to adjudicate increased

evaluations for the radiculopathy disabilities.

Mr. Chavis argues that the Board properly had jurisdiction over the radiculopathy

evaluations because those matters were part of the claim for an increased evaluation for the lumbar

spine disability. Appellant's Supplemental Memorandum of Law (Supp. Memo.) at 2-11 (citing

Harper v. Wilkie, 30 Vet.App. 356, 361-62 (2018)). In so arguing, he relies on the plain language

of Note (1) of the General Rating Formula, the M21-1, and Board decisions assuming jurisdiction

in the same manner as the Board did in Mr. Chavis's case. Id. at 2-9. Alternatively, he argues that

his November 2009 NOD as to the lumbar spine evaluation placed the radiculopathy evaluations

in appellate status because it expressed disagreement with the February 2009 RO decision that did

not address neurologic complications. Id. at 10-11.

In contrast, the Secretary argues that the Board erroneously determined that it had

jurisdiction over the radiculopathy evaluations because Mr. Chavis did not file an NOD following

15

the January 2018 RO decision granting service connection and assigning the initial evaluations.

Secretary's Supp. Memo. at 3-14. He further argues that, although Note (1) of the General Rating

Formula provides that neurologic abnormalities associated with a spine disability are to be

evaluated separately, neither the clear language of Note (1) nor the history or purpose of the Note

eliminates the requirement that a claimant must file an NOD regarding the propriety of those

separate evaluations. Id. at 6-8. He additionally argues that, unlike the part-and-parcel nature of

TDIU as analyzed in Harper, the propriety of the evaluations for neurologic abnormalities

associated with spine disabilities is a downstream issue requiring a separate NOD. Id. at 12-14.

B. The Board had jurisdiction over the radiculopathy evaluations.

Every "statutory tribunal must ensure that it has jurisdiction over each case before

adjudicating the merits"; to that end, "a potential jurisdictional defect may be raised by the court

or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must

be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see Smith v. Brown,

10 Vet.App. 330, 332 (1997). "Accordingly, the Court always has jurisdiction to determine its

jurisdiction over a case." Smith, 10 Vet.App. at 332.

The Court concludes that, given the nature and progression of Mr. Chavis's lumbar spine

condition and VA's duty to sympathetically construe his broadly worded, pro se filings, the issues

of increased evaluations for Mr. Chavis's bilateral lower extremity radiculopathy were part of his

claim seeking a higher evaluation for the underlying lumbar spine disability.17

First, the lay and medical evidence throughout the appeal period of the lumbar spine claim

reflects neurologic signs and symptoms that have now been attributed to the bilateral lower

extremity radiculopathy. During the December 2008 VA examination, Mr. Chavis reported

radiating pain into both legs, and the examiner documented a positive straight leg-raising test

bilaterally and sensory deficits in the left lower leg and foot. R. at 3474-75. In April 2011, Mr.

Chavis reported radiating pain into his left thigh, and his treating VA physician documented a

positive straight leg-raising test and decreased sensation in the left leg. R. at 3330-33. During the

December 2011 VA examination, Mr. Chavis reported left-sided radiating pain, paresthesias, and

sensory deficits. R. at 3280-81. In January 2012, he reported radiating pain into his left thigh, and

his treating physician noted absent patellar reflexes and left foot weakness and decreased

17

We leave for another day the question whether issues of higher evaluations for radiculopathy are always

part of claims seeking higher evaluations for the underlying spine disability.

16

sensation. R. at 3268-69. And in the November 2017 addendum medical opinion, the VA examiner

noted bilateral lower extremity numbness. R. at 82-83.

Although medical professionals have ascribed these neurologic signs and symptoms to

differing diagnoses throughout the appeal period, see R. at 3475 (December 2008 VA examiner

diagnosing IVDS affecting the sciatic nerve), 3333-34 (April 2011 VA physician noting both

CRPS following foot trauma and lumbosacral radiculopathy), 3285 (December 2011 VA examiner

documenting IVDS and diagnosing radicular pain as left-sided radiculitis but ascribing the sensory

deficits to the 2006 crush injury), 3269 (January 2012 VA physician diagnosing discogenic pain

but ascribing the left lower leg deficits to CRPS), 82-83 (November 2017 VA examiner diagnosing

bilateral lower extremity radiculopathy); see also R. at 3589-90 (January 1999 RO decision noting

that March 1998 MRI results were questionable for left lumbar radiculopathy), VA now considers

these symptoms demonstrative of bilateral lower extremity radiculopathy and has evaluated those

symptoms under the DC contemplating involvement of the sciatic nerve, R. at 11-12, 50-52.

Moreover, the November 2017 examiner specifically stated that the radiculopathy was a

progression of the service-connected lumbar spine disability and not a new and separate condition.

R. at 83-84. In sum, the lay and medical evidence presented and developed in connection with the

lumbar spine claim indicates that Mr. Chavis's radiculopathy is part of his lumbar spine disability.

Second, VA has considered Mr. Chavis's reports of neurologic sequelae as part of his claim

seeking increased compensation for his back disability. In the June 2012 SSOC, the RO noted that,

although the December 2011 VA examiner did not diagnose radiculopathy, he diagnosed

radiculitis as accounting for Mr. Chavis's radicular pain. R. at 3132. Accordingly, the RO "added

left lumbar radiculitis to [his] diagnoses as part of the disease process of [his] service[-]connected

disability." Id. Following discussion of neurologic symptoms and the availability of separate

evaluations during the December 2015 Board hearing, see R. at 3036-40, the Board remanded the

lumbar spine claim in February 2016, in part, to afford Mr. Chavis a new VA examination, R. at

3011-15. As relevant, the Board specifically directed the VA examiner to identify all neurologic

manifestations of the service-connected back condition and to render an opinion regarding the

severity of any identified manifestations. R. at 3014.

The Board's and the RO's consideration of Mr. Chavis's lumbar spine disability as including

neurologic manifestations is consistent with provisions of VA's Adjudication Procedures Manual

that discuss the interrelated nature of orthopedic and neurologic manifestations of spine

17

disabilities. Specifically, the M21-1 details that, when using the General Rating Formula,

adjudicators are to "evaluate conditions based on chronic orthopedic manifestations . . . and any

associated neurological manifestations . . . by assigning separate evaluations for the orthopedic

and neurological manifestations." M21-1, III.iv.4.A.5.a; see 38 C.F.R. § 4.71a, General Rating

Formula, Note (1).18 And the M21-1 instructs adjudicators that, "[b]ecause spinal disease can cause

objective neurologic abnormalities, the onset of a neurologic complication represents medical

progression or worsening of the spinal disease" and to treat a claim asserting a new neurologic

complication as a claim for increase of the underlying spine disease. M21-1, III.iv.4.A.5.d.

VA's consideration of Mr. Chavis's neurologic manifestations as part of the claim seeking

higher compensation for the lumbar spine disability is also consistent with VA's duty to

sympathetically read pro se pleadings. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.

2001) ("Congress has mandated that the VA is 'to fully and sympathetically develop the veteran's

claim to its optimum.'" (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998))). Given

that there was evidence of neurologic manifestations contemporaneous with Mr. Chavis's

pleadings and that those pleadings were broadly worded, see R. at 3508 (November 2008 informal

claim), 3440 (November 2009 NOD), a sympathetic reading of those readings compels a

conclusion that they encompassed the appropriate evaluations for the neurologic component of

Mr. Chavis's lumbar spine disability. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000)

(noting that a "broad NOD . . . may confer jurisdiction over the entire request for a benefits

entitlement"). Although clarity may not have been obtained until VA confirmed the source of the

neurologic manifestations, such hindsight does not change VA's duties to consider the "general

lenity rule" in determining the scope of the claim based on the claimant's filings and evidence of

record. See Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020).

Therefore, the Court concludes that the Board properly had jurisdiction over the issues of

increased evaluations for bilateral lower extremity radiculopathy. Because Mr. Chavis's

radiculopathy was part of his claim seeking higher compensation for his lumbar spine disability,

the Board did not err, in this particular case, by choosing to address the appropriate evaluation for

the radiculopathy component of Mr. Chavis's lumbar spine condition. See Bernard v. Brown,

18

Similarly, the M21-1 instructs adjudicators that, when evaluating spinal conditions under the Incapacitating

Episodes Formula, separate evaluations for associated neurologic manifestations are not warranted because evaluating

IVDS based on incapacitating episodes already contemplates neurologic manifestations. M21-1, III.iv.4.A.5.a, e.

18

4 Vet.App. 384, 392 (1993) (holding that, where the Board properly had appellate jurisdiction to

review a claim for benefits, "it follows that the Board was authorized to decide all questions

presented on the record before it that were necessary to its decision on that matter"); see also

Godfrey v. Brown, 7 Vet.App. 398, 409-10 (holding that Bernard applies where the questions are

components of a single claim for benefits and characterizing Mr. Godfrey's claim for service

connection for an ankle disability as a separate matter because it "was not a component of the

back-condition" claim).

C. Merits of the Board's Determination Regarding Increased Evaluations for Radiculopathy

Having explained that the Board had—and, by extension, that this Court has—jurisdiction

to address the proper evaluation for the bilateral lower extremity radiculopathy, we now move to

the merits of the Board's decision on these issues. Mr. Chavis's bilateral lower extremity

radiculopathy is currently evaluated under DC 8520. See R. at 11-12, see also 38 C.F.R. § 4.124a

(2020). Under that DC, a 10% evaluation is warranted for mild incomplete paralysis; a 20%

evaluation is warranted for moderate incomplete paralysis; a 40% evaluation is warranted for

moderately severe incomplete paralysis; a 60% evaluation is warranted for severe paralysis, with

marked muscular atrophy; and an 80% evaluation is warranted for complete paralysis. Id., DC

8520.

In its decision, the Board found that the criteria for a 20% evaluation, but no higher, were

met and awarded an increased evaluation for both legs. R. at 11-12. In reaching its determination,

the Board discussed the November 2017 VA examiner's opinion that the radiculopathy was

moderate in severity, R. at 11, then concluded that the evidence demonstrated that the

radiculopathy was moderate, R. at 12. The Board denied higher evaluations because the next higher

level of severity—moderately severe—was not present at any time during the appeal period. Id.

As mentioned above, both parties agree that the Board failed to adequately explain its

determination that evaluations higher than 20% were not warranted. Appellant's Br. at 20-25;

Secretary's Br. at 18; see Secretary's Supp. Memo. at 16-17 (maintaining that, if the Court found

that the Board properly had jurisdiction, the Board's decision regarding the radiculopathy

evaluations should be set aside and remanded for inadequate reasons or bases).

The Court agrees. Notably, the Board failed to define the subjective terms contained in DC

8520. Without established benchmarks for those subjective terms, the Court is left without

standards upon which to review the Board's decision. See Johnson, 30 Vet.App. at 255 ("Without

19

a standard for comparing and assessing terms of degree, such conclusory findings are unreviewable

in this Court."); see also Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("The Board must

explain, in the context of the facts presented, the rating criteria used in determining the category

into which a claimant's symptoms fall; it is not sufficient to simply state that a claimant's degree

of impairment lies at a certain level without providing an adequate explanation.").

VA's Adjudication Procedures Manual provides benchmarks for mild, moderate,

moderately severe, and severe peripheral nerve conditions, see M21-1, III.iv.4.N.4.c, but the Board

did not discuss them. See Secretary's Br. at 18 (acknowledging the relevant M21-1 provision).

Although the Board is not bound by the M21-1, the standards provided in the M21-1 are "relevant

guidance promulgated for the purpose of facilitating the efficient and proper resolution of claims,"

which the Board must consider and address as part of its duty to provide a reasoned explanation

for its decision. Healey v. McDonough, No. 18-6970, 2021 WL 710847, *5-6 (Vet. App. Feb. 24,

2021); see Overton v. Wilkie, 30 Vet.App. 257, 264 (2018). Instead, the Board simply relied on

the November 2017 examiner's assessment that Mr. Chavis's radiculopathy was moderate in

severity, R. at 11-12; however, "the Board cannot uncritically adopt an examiner's assessment of

the veteran's level of disability as its own without reconciling that assessment with the other

evidence of record," Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019) (citing Gabrielson v. Brown,

7 Vet.App. 36, 40 (1994) (noting that a medical opinion is "only that, an opinion" providing

medical evidence)).

As the Board failed to provide context for subjective terms contained in the DC, the Court

agrees with the parties and concludes that the Board failed to provide adequate reasons or bases

for its decision. See Caluza, 7 Vet.App. at 506. The Board's failure in this respect prevents Mr.

Chavis from understanding the precise basis for its finding and frustrates judicial review. See

38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. Remand of these

issues is therefore warranted. See Tucker, 11 Vet.App. at 374 (holding that remand is warranted

"where the Board has . . . failed to provide an adequate statement of reasons or bases for its

determinations").

On remand, Mr. Chavis is free to submit, and the Board must consider, additional

arguments and evidence, including the arguments raised in his briefs to this Court. See Kay v.

Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)

(per curiam order). The Court reminds the Board that "[a] remand is meant to entail a critical

20

examination of the justification for the [Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394,

397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.

IV. CONCLUSION

After consideration of the parties' briefs and supplemental memoranda, oral arguments, the

record on appeal, and the governing law, those portions of the April 20, 2018, Board decision that

denied entitlement to an evaluation higher than 40% for a lumbar spine disability and denied

entitlement to evaluations higher than 20% for bilateral lower extremity radiculopathy are SET

ASIDE, and those matters are REMANDED for readjudication consistent with this decision.

MEREDITH, Judge, concurring in part, dissenting in part: I join the opinion except for

Part III, in which the majority concludes that the Board of Veterans' Appeals (Board) had, and this

Court in turn has, jurisdiction over the appropriate disability rating for bilateral radiculopathy.

Because the statutory framework and controlling caselaw require a Notice of Disagreement (NOD)

in order to place a matter into appellate status, it is my view that the Board erred in assuming

jurisdiction over that unappealed, downstream issue. As explained below, this jurisdictional

requirement was not satisfied by an NOD predating the award of secondary service connection for

radiculopathy, the need to file an NOD was not obviated by Note 1 to the General Rating Formula

for Diseases and Injuries of the Spine (General Rating Formula), and the Board did not acquire

jurisdiction under theories that the issue was reasonably raised or part and parcel of an increased

rating claim.19 I thus respectfully dissent from the majority's decision to remand this matter.

I. Background

Here, it is undisputed that the appellant filed a claim for an increased disability rating for

his service-connected lumbar spine condition in November 2008. Record (R.) at 3508. A VA

regional office (RO) in February 2009 increased his disability rating from 20% to 40%, R. at

3462-65, and he filed an NOD in November 2009 disputing the assigned rating for his low back

19

To be clear, I agree that VA had an obligation to adjudicate entitlement to benefits for the appellant's

neurological conditions associated with his lumbar spine condition. See Roberson v. Principi, 251 F.3d 1378, 1384

(Fed. Cir. 2001); Bailey v. Wilkie, 33 Vet.App. 188, 203 (2021). Where I differ from the majority is that I find no legal

basis to conclude that any matters addressed in that adjudication are automatically placed in appellate status without

an NOD addressing that decision.

21

condition, R. at 3439-40. After the RO continued the 40% rating in a Statement of the Case (SOC),

R. at 3397-417, the appellant perfected an appeal to the Board, R. at 3394. In February 2016, the

Board remanded the matter for further development, including an examination to "record the

[appellant's] reported symptoms of his lumbar spine disability" and "identify all neurological

manifestations of the . . . back disability." R. at 3014.

Following the requested examination, the RO in December 2017 issued (1) a Supplemental

SOC in which it continued the 40% rating for a low back strain, R. at 57-69; see R. at 53; and (2) a

rating decision in which it awarded service connection for bilateral lower extremity radiculopathy

"as related to the service-connected disability of low back strain" and assigned a 10% rating for

each extremity, R. at 51. In the January 2018 cover letter to the rating decision, the RO advised

the appellant that a Supplemental SOC "ha[d] been sent under separate cover," R. at 42, and that,

if he did not agree with the rating decision, he must "complete and return . . . the enclosed" NOD

form, R. at 44. Although the appellant did not submit an NOD in response, the Board in the April

2018 decision on appeal found that "the [appellant's] ratings for bilateral radiculopathy are part

and parcel of the claim for an increased rating for a lumbar spine disability" and thus "[took]

jurisdiction of such claims." R. at 3.

II. November 2009 Notice of Disagreement

At the time the appellant filed his NOD with the February 2009 RO decision that granted

benefits for a lumbar spine disability, applicable law provided that "[a]ppellate review will be

initiated by a[n NOD] and completed by a substantive appeal after a[n SOC] is furnished."

38 U.S.C. § 7105(a) (2009).20 "[A]n NOD relates to a specific 'adjudicative determination' on a

specific date." Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998). "Just as the Court's jurisdiction

is dependent on a jurisdiction-conferring NOD, the Board's jurisdiction, too, derives from a

claimant's NOD." Buckley v. West, 12 Vet.App. 76, 82 (1998); see Brannon v. West, 12 Vet.App.

32, 34-35 (1998).

Here, the appellant does not contend that he filed an NOD as to the January 2018 RO

decision awarding secondary service connection and 10% disability ratings for radiculopathy.

20

As a result of the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55,

§ 2(q), 131 Stat. 1105, 1111 (Aug. 23, 2017), this section now provides: "Appellate review shall be initiated by the

filing of a notice of disagreement in the form prescribed by the Secretary." 38 U.S.C. § 7105(a) (2021).

22

Rather, he avers that his November 2009 NOD encompassed disagreement with the RO's failure

to adjudicate entitlement to benefits for radiculopathy in February 2009, and thus the Board had

jurisdiction over the radiculopathy ratings in the decision on appeal. See Appellant's Supplemental

Memorandum (Supp. Memo.) of Law at 10-11. Although I agree that the 2009 NOD could

encompass disagreement with the RO's failure to award secondary service connection for

radiculopathy in February 2009, it could not have placed into appellate status the downstream issue

of the proper rating for radiculopathy—and thereby conferred on the Board jurisdiction over that

issue—because the RO did not consider the upstream issue of entitlement to benefits for

radiculopathy until January 2018, more than 8 years after the NOD was filed. See Grantham v.

Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) ("Because the first appeal concerned the rejection

of the logically up-stream element of service-connectedness, the appeal could not concern the

logically down-stream element of compensation level."); see also Ephraim v. Brown, 82 F.3d 399,

401 (Fed. Cir. 1996) ("[A] newly diagnosed disorder, whether or not medically related to a

previously diagnosed disorder, can not be the same claim when it has not been previously

considered."). In other words, in November 2009, there was no adjudicative determination as to

the disability ratings for radiculopathy with which the appellant could have disagreed.

III. General Rating Formula Note 1

In the alternative, the appellant contends that he did not need to file another NOD because

VA, by regulation, has made the appropriate rating for associated neurologic abnormalities part of

the underlying spine claim. In that regard, the parties agree that the language of Note (1) of the

General Rating Formula is clear that, when the evidence establishes that a neurological

complication is associated with a service-connected spine disability, that complication is to be

service connected not as part of the underlying spine disability, but separately, based on the criteria

in the Rating Schedule relevant to the particular neurological abnormality. See 38 C.F.R. § 4.71a,

General Rating Formula, Note 1; Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56,509,

56,510 (Sept. 4, 2002) (noting that "sensory or motor loss in [the] extremities are among the

neurologic impairments that most commonly result from disease or injury of the spine"); VA

ADJUDICATION PROCEDURES MANUAL, M-21, Pt. III, subpt. iv, ch. 4, § A.5.d ("Because spinal

disease can cause objective neurological abnormalities, onset of a neurological complication

represents medical progression or worsening of the spinal disease."); see also Appellant's Supp.

23

Memo. at 4; Secretary's Supp. Memo. at 6. In other words, there is no dispute that when VA

considers benefits for a spinal disability, it must also consider whether there are any associated

neurological complications and, if so, it must rate those complications separately.

Although the majority focuses on the effect of Note 1 in terms of the scope of the initial

claim, the question before the Court is whether—where VA grants benefits for an associated

neurological complication after the claimant has already filed an NOD as to a decision on an

increased rating for the underlying spine disability—the issue of the proper rating for the

associated neurological complication becomes part of the pending appeal of the rating assigned

for the underlying back condition simply by virtue of the already-filed NOD. Note 1 does not

resolve this question because it does not address appellate procedure or indicate whether disputes

concerning a separate grant of benefits for associated neurological abnormalities may be placed

into appellate status absent an NOD that postdates the grant. Thus, there is no basis for concluding

that Note 1 obviates the statutory requirement for placing an issue into appellate status: "Appellate

review will be initiated by a[n NOD] and completed by a substantive appeal after a[n SOC] is

furnished." 38 U.S.C. § 7105(a) (2009).

IV. Reasonably Raised Claims

The appellant further avers that, based on 38 C.F.R. § 3.155(d)(2) and VA's practice of

adjudicating reasonably raised claims, the radiculopathy ratings were part of the low back claim

that was before the Board. Appellant's Supp. Memo. at 6. And, in January 2021, he submitted

supplemental authority pursuant to Rule 30(b) of the Court's Rules of Practice and Procedure in

which he identified the Court's recent decision in Bailey, 33 Vet.App. at 188, as "relevant to [his]

argument . . . that the issue of entitlement to ratings for neurological impairments caused by the

back disability were part of his claim for the appropriate evaluation for the primary back

disability." Appellant's Supp. Authority at 2.

In Bailey, relating to reasonably raised claims for secondary service connection, the Court

held that "the text, history, and purpose of [38 C.F.R.] §§ 3.155(d)(2) and 3.160 indicate that VA

is required to develop and adjudicate related claims for secondary service connection for

disabilities that are reasonably raised during the adjudication of a formally initiated claim for the

proper evaluation for the primary service-connected disability." 33 Vet.App. at 203. The Court

determined that a claimant "need not file a separate, formal claim for secondary service

24

connection" for the reasonably raised disability, id. at 191, and that the RO decision on the

secondary disability in that case, issued while the appeal of the primary disability was pending,

"could not and did not divest the Board of jurisdiction over the veteran's initial appeal," id. at 204.

The Court in Bailey relied on Warren v. McDonald, in which there were two claim streams

that resulted from VA's erroneous conclusion that the appellant had withdrawn his appeal of his

claim for service connection for sleep apnea, originally denied in April 2009. 28 Vet.App. 214,

219 (2016). After VA made that erroneous conclusion, it construed a 2010 filing by the appellant

as a request to reopen his claim; the RO granted the request and awarded secondary service

connection for sleep apnea with an effective date in May 2010, and the appellant did not appeal.

Id. at 216. When the matter reached the Board in the first claim stream, the Board stated that the

appeal stemmed from the April 2009 RO decision but characterized the matter on appeal as the

proper effective date for the award of service connection for sleep apnea. Id. at 217. The Court

agreed with the appellant that the Board had mischaracterized the issue and that the matter before

the Board was the appeal of the April 2009 denial of service connection for sleep apnea. Id. at 220.

Notably, the Court explained that no appeal of the assigned effective date for secondary service

connection had been addressed at the RO level—that is, the RO had not issued an SOC in response

to an NOD as to that matter—and therefore the Board lacked jurisdiction over it. Id. at 221 (citing

Jarrell v. Nicholson, 20 Vet.App. 326, 330-32 (2006) (en banc)). The Court remanded the appeal

for the Board to "address the merits of the December 2008 claim." Id. at 221-22.

There were also two claim streams in Bailey: An appeal of a December 2015 rating

reduction for service-connected prostate cancer and a January 2019 claim for benefits for

lymphedema secondary to prostate cancer. 33 Vet.App. at 191-92. The Board, in March 2019,

determined that the rating reduction was proper and that the appellant's claimed lymphedema and

other prostate cancer residuals were not contemplated by the rating schedule for prostate cancer,

which the Board found contemplated only voiding dysfunction. Id. at 192. While the appeal of the

March 2019 Board decision was pending before this Court, the RO in July 2019 granted service

connection for right and left lower extremity lymphedema secondary to prostate cancer residuals,

with an effective date as of the date of the 2019 claim. Id. On appeal, the appellant argued that the

Board should have considered secondary service connection for his reasonably raised prostate

cancer residuals. Id. at 197. The Court rejected the Secretary's argument that those residuals were

25

not part of the claim stream related to the proper disability rating for prostate cancer because the

appellant had not filed formal claims for those conditions. Id. at 204.

The Court's decision was based on a VA regulation that requires the Agency to "adjudicate

entitlement to benefits for the claimed condition as well as entitlement to any additional benefits

for complications of the claimed condition." 38 C.F.R. § 3.155(d)(2) (2020); see Bailey,

33 Vet.App. at 200. Because the appellant's claimed residuals were reasonably raised by the record

during the pendency of the appeal of the proper rating for prostate cancer and no formal application

was required, the Court held that VA was "required . . . to recognize, develop, and adjudicate his

entitlement to secondary service connection" for complications of prostate cancer and that the

Board thus erred in failing to address those issues. Bailey, 33 Vet.App. at 203 (emphasis added).

The Court further concluded that the RO's subsequent grant of secondary service connection and

assignment of an effective date and disability rating for those residuals in the separate claim stream

"could not and did not divest the Board of jurisdiction" over the initial appeal. Id. at 204.

Accordingly, the Court remanded "[t]he reasonably raised claims for secondary service connection

. . . for further development . . . and adjudication," which would "preserve[] the possibility of an

earlier effective date" for the award of secondary service connection. Id. at 204-05.

On the other hand, the case now before the Court involves only a single claim stream: A

request for an increased rating for a service-connected lumbar spine disability. In the course of the

development and adjudication of that claim, associated neurological complications were

documented (i.e., were reasonably raised) and, in accordance with Note 1, rated as separate,

secondary disabilities under the appropriate diagnostic code. In other words, VA complied with

Bailey, as well as with the requirements of Note 1, by addressing entitlement to secondary service

connection for the reasonably raised complications of the appellant's lumbar spine condition.

Nothing in Warren or Bailey addresses what is necessary to place into appellate status

downstream elements once VA adjudicates a reasonably raised claim. Nor do those cases require

VA to necessarily construe an appeal related to the primary condition as including an appeal with

respect to the rating assigned for the secondary condition, particularly where benefits for the

secondary condition are granted in a separate decision to which the claimant does not file an

26

NOD.21 To the contrary, Warren explicitly concluded that the Board lacked jurisdiction over a

downstream element—the effective date for service connection—not addressed by the RO in the

same claim stream, and Bailey at least implicitly found that the rating and effective date for the

secondarily service-connected condition were not before the Board in its review of the proper

evaluation of the primary condition. See Bailey, 33 Vet.App. at 204; Warren, 28 Vet.App. at 221.

As a result, these cases do not compel or support the conclusion that the Board here had jurisdiction

over the downstream element of disability ratings for the secondarily service-connected condition.

V. Part and Parcel

The appellant also likens the procedural posture of his case to that of a matter involving a

total disability rating based on individual unemployability (TDIU), which the Court has held is

part and parcel of the underlying claim for benefits or for an increased rating and therefore need

not be appealed separately from the adjudication on the underlying condition(s). Appellant's Supp.

Memo. at 2-3, 7 (citing Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009); Harper v. Wilkie,

30 Vet.App. 356, 361 (2018); Rice v. Shinseki, 22 Vet.App. 447, 453 (2009) (per curiam)). He

argues that he, like a claimant seeking TDIU, is simply seeking an appropriate evaluation for the

overall level of disability related to his spine. Id. at 7. However, "a request for TDIU . . . is not a

separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a

disability or disabilities." Rice, 22 Vet.App. at 453; see Comer, 552 F.3d at 1367; Harper,

30 Vet.App. at 359. In other words, TDIU is another avenue through which a claimant may obtain

a 100% rating for a service-connected condition. See Norris v. West, 12 Vet.App. 413, 420-21

(1999) ("A TDIU rating is not a basis for an award of service connection. Rather, it is merely an

alternate way to obtain a total disability rating without being rated 100% disabled under the Rating

Schedule."). Accordingly, if the issue on appeal is the proper rating, VA must consider the

possibility of TDIU where there is evidence of unemployability. Rice, 22 Vet.App. at 453.

In contrast, unlike a matter involving TDIU, the appellant was not awarded a higher

disability rating for his spine condition because of a neurological complication; he was awarded a

21

Even assuming that the November 2009 NOD could serve to place the January 2018 rating decision into

appellate status, there is no indication that VA issued an SOC as to the ratings assigned for radiculopathy of the

bilateral lower extremities. See 38 U.S.C. § 7105(a) (2017) ("Appellate review will be initiated by a[n NOD] and

completed by a [S]ubstantive [A]ppeal after a[n SOC] is furnished."). Accordingly, even if the Board had jurisdiction

over that matter, it appears that remand for VA to issue an SOC would have been appropriate.

27

separate disability rating for the complication on a secondary basis. See 38 C.F.R. § 4.71a, General

Rating Formula for Diseases and Injuries of the Spine, Note 1; 67 Fed. Reg. at 56,510

(characterizing the gastrointestinal, genitourinary, and neurologic abnormalities as "disabilities"

that "stem from diseases and injuries of the spine"). Moreover, the Court in Harper distinguished

Grantham, which held that an NOD is required to place "elements of an application for benefits

that were not previously adjudicated" into appellate status, 30 Vet.App. at 361, explaining that

TDIU may be placed into appellate status by an NOD as to the rating for the service-connected

condition because it is part of a claim for an increased evaluation. Id. at 361-62. The appellant's

"part and parcel" argument, therefore, is unpersuasive. See Ross v. Shinseki, 21 Vet.App. 528, 532

(2008) (differentiating between TDIU and the incurrence of additional disabilities as a result of a

service-connected disability), aff'd sub nom. Ross v. Shinseki, 309 F. App'x 394 (Fed. Cir. 2009).

VI. Remedy

For these reasons, I would find that the Board committed legal error in concluding that it

had jurisdiction over the issue of the proper disability rating for radiculopathy and dismiss the

appeal of that part of the Board decision that denied entitlement to disability ratings in excess of

20% for bilateral lower extremity radiculopathy. As for the Board's grant of 20% disability ratings

for radiculopathy, although the Secretary requests that the Court vacate that part of the Board

decision as ultra vires, I would conclude that that matter is not properly before the Court. See

38 U.S.C. § 7252(a) ("The Secretary may not seek review of any [Board] decision."); Bond v.

Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) ("This Court's jurisdiction is confined

to the review of final Board . . . decisions which are adverse to a claimant.").

However, I also am compelled to note that the Board issued the decision on appeal on

April 20, 2018, only three-and-a-half months after the RO, on January 8, 2018, mailed to the

appellant notice of its decision granting benefits for radiculopathy of the bilateral lower extremities

and assigning 10% disability ratings for each leg. A legacy claimant has 1 year from the date on

which a decision is mailed to file an NOD, 38 U.S.C. § 7105(b)(1)(A); the Board's determination

that it had jurisdiction over the matter of the proper ratings for radiculopathy, despite the lack of

an NOD as to those matters, may have led the appellant to believe that he did not need to file an

28

NOD as to the January 2018 rating decision.22 Because the 1-year period to appeal the January

2018 rating decision has since passed, if the Court had dismissed his appeal of the Board's decision

denying entitlement to higher initial disability ratings for radiculopathy, that would, in my view,

raise a serious question as to what recourse should be available to the appellant. See 38 U.S.C.

§ 503(a), (b) (authorizing the Secretary to provide equitable relief); Bailey v. West, 160 F.3d 1360,

1365 (Fed. Cir. 1998) (en banc) (holding that equitable tolling may be justified if a veteran received

erroneous information from a VA employee that induced him or her to miss the filing deadline);

Chastain v. West, 13 Vet.App. 296, 299 (2000) (holding that there must be a cause-and-effect

relationship between the misinformation provided and the veteran's late filing), aff'd sub nom.

Chastain v. Principi, 6 F. App'x 854 (Fed. Cir. 2001) (per curiam).

22

In that regard, it is also noteworthy—and perhaps disconcerting—that, while this matter was on appeal to

the Court, the Secretary took three different positions as to the appropriate remedy regarding radiculopathy, initially

contending that the Board had jurisdiction and remand was warranted. See Secretary's Br. at 18 (asking the Court to

vacate and remand that part of the Board's decision that denied a rating higher than 20% for radiculopathy of each

lower extremity because the Board provided inadequate reasons or bases for its determination that higher ratings were

not warranted); Jan. 16, 2020, Notice of Clarification, at 2-3 (contending that the Board "technically did not have

jurisdiction" over radiculopathy but noting that the Secretary "does not now seek to disturb" the favorable grant of

20% ratings); Secretary's Supp. Memo. at 18-20 (arguing that the Board's award of a 20% rating for each bilateral

lower extremity was a nullity, not a favorable factual finding, and asking the Court to vacate that part of the Board's

decision and dismiss the appeal of that matter).

29