Gerard Cullen v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 08-1193

GERARD CULLEN , APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans’ Appeals

(Argued June 10, 2010 Decided August 13, 2010)

Landon Overby, with Robert V. Chisholm, both of Providence, Rhode Island, were on the

brief for the appellant.

Michael Carr, with Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General

Counsel; and Leslie C. Rogall, Deputy Assistant General Counsel, all of Washington, D.C., were on

the brief for the appellee.

Before HAGEL, MOORMAN, and DAVIS, Judges.

HAGEL, Judge: Gerard Cullen appeals through counsel a February 27, 2008, Board of

Veterans' Appeals (Board) decision denying entitlement to increased disability ratings for

(1) residuals of a shrapnel wound to the right shoulder and right side of back, and (2) degenerative

joint disease of the thoracic spine, each currently rated 20% disabling. The Court has jurisdiction

pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the February 2008 Board decision.

This matter was referred to panel to determine whether a claimant may be entitled to more

than one disability rating for the same condition under the same diagnostic code. We hold that he

may not. Because, however, the Board failed to provide an adequate statement of its reasons or

bases for concluding that Mr. Cullen was not entitled to an increased disability rating for his thoracic

spine condition due to additional limitations due to pain, weakness, or fatigue; and because the

Board's reasons or bases for its denial of entitlement to an increased disability rating for the residuals

of a shrapnel wound were also inadequate, the Court will vacate the February 2008 Board decision

and remand the matters for further development, if necessary, and readjudication consistent with this

decision.

I. FACTS

Mr. Cullen served on active duty in the U.S. Army from June 1966 to September 1968,

including service in Vietnam. In March 2003, he sought increased disability ratings for residuals of

a right shoulder shrapnel wound and for degenerative joint disease of the thoracic spine, each of

which had been rated 10% disabling.

In October 2004, Mr. Cullen underwent a VA muscles examination in connection with both

of his claims. With respect to Mr. Cullen's right shoulder and right side of his back, the examiner

reported:

The veteran has a limitation of the flexion and extension of the right shoulder to 60

degrees and 30 degrees. The abduction is limited to 120 degrees on the right

shoulder. Internal rotation 55 degrees, external rotation limited to 25 degrees. The

veteran can actively and passively move the joint. The veteran cannot move the joint

through gravity. The joint function of the right shoulder is limited by pain, fatigue,

weakness, and lack of endurance following repetitive use and also during the

flare-up.

Record (R.) at 241.1 Regarding Mr. Cullen's thoracic spine condition, the examiner reported:

The veteran has a loss of lumbar lordosis, and there is paravertebral muscle spasm

of the T4, T5, and T6 area. Forward flexion is restricted to 70 degrees with pain.

Backward extension he can do to only 20 degrees with pain. Left lateral flexion

produces pain at 20 degrees. Right lateral flexion produces pain at 15 degrees. The

right lateral rotation to the right and the left is 20 degrees with pain. The thoracic

spine is painful on motion, and there is additional limitation of the thoracic spine

with pain, fatigue, weakness, and lack of endurance following repetitive use and

during the flare-up. There is painful motion, spasm, and tenderness of the thoracic

spine. There is muscle spasm of the thoracic spine. Then, there is guarding of the

thoracic muscles and spine with abnormal spinal contour with a kyphosis of the

thoracic spine.

1

Flexion is "the act of bending or condition of being bent." D O RLAN D 'S I LLU STRATED M ED ICAL D ICTION ARY

725 (31st ed. 2007) [hereinafter D O RLAN D 'S ]. Extension is "the movement that straightens or increases the angle between

bones or parts of the body. Id. at 670. Abduction means "to draw away from the median plane." Id. at 2.

2

R. at 243. 2

In an April 2005 rating decision, a VA regional office increased the disability ratings for each

of Mr. Cullen's disabilities from 10% to 20%. Mr. Cullen disagreed with the ratings assigned via

a Notice of Disagreement in May 2005, and ultimately appealed to the Board in November 2005.

In February 2008, the Board issued the decision on appeal denying entitlement to increased

disability ratings. Regarding Mr. Cullen's thoracic spine disability, the Board discussed the criteria

contained in 38 C.F.R. § 4.71a, and concluded that the medical evidence supported only a 20%

rating. In this regard, the Board stated:

Considering limitation of motion, the competent medical evidence of record shows

that the veteran currently has forward flexion of the thoracolumbar spine limited to

70 degrees with pain and some additional limitation caused by pain, fatigue,

weakness and lack of endurance following repetitive use. The Board has considered

the applicability of DeLuca v. Brown, 8 Vet. App. 202, including whether there is a

basis for assigning a rating in excess of 20 percent due to additional limitation of

motion resulting from pain or functional loss. See 38 C.F.R. §§ 4.40 and 4.45. There

is no question in this case that pain is a component of the veteran's disability.

Nevertheless, the Board finds that the effects of pain reasonably shown to be due to

the veteran's service-connected degenerative joint disease of the thoracolumbar spine

are contemplated in the 20 percent rating currently assigned. The competent

evidence of record does not show that pain, fatigue, weakness and lack of endurance

following repetitive use causes forward flexion of the thoracolumbar spine to be

limited to 30 degrees or less or to be equivalent to favorable ankylosis.[3] See

38 C.F.R. § 4.40; DeLuca, supra. While repetitive motion reportedly added

additional limitation, the Board is of the opinion that even considering this additional

limitation as reported by the VA examiner the veteran's disability picture more nearly

approximates the criteria required for the 20 percent rating (forward flexion limited

to between 30 and 60 degrees). See 38 C.F.R. § 4.7 la, DC 5242. As such, an

evaluation in excess of 20 percent for degenerative joint disease of the thoracic spine

based on limitation of motion is not warranted. See id., see also 38 C.F.R. § 4.7 la.

2

Lordosis is "abnormally increased concavity in the curvature of the lumbar spinal column as viewed from the

side." D O RLAN D 'S at 1090. Paravertebral means "beside the vertebral column." Id. at 1403. T4, T5, and T6 indicate

the 4th, 5th, and 6th vertebrae of the thoracic spinal column. See http://visual.merriam-webster.com/

images/human-being/anatomy/skeleton/spinal-column.jpg (last visited June 11, 2010). Kyphosis is "abnormally

increased convexity in the curvature of the thoracic spinal column as viewed from the side." D O RLAN D 'S at 1007.

3

Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."

D O RLAN D 'S at 94.

3

R. at 19. Regarding Mr. Cullen's shoulder and back disability, the Board discussed the medical

evidence pertaining to the limitation of motion in his right shoulder but ultimately concluded that

the September 2004 VA examination supported only the current 20% rating. With respect to the

DeLuca factors, the Board's discussion was essentially the same as quoted above for the thoracic

spine disability.

On appeal, Mr. Cullen first argues that the Board erred in its interpretation of 38 C.F.R.

§ 4.71a.4 Specifically, he contends that a proper reading of the regulation required the Board to

award him both a 20% disability rating and a 40% disability rating for his thoracic spine condition.

He asserts that this is so because (1) the criteria are written in the disjunctive and are not duplicative

or overlapping, and they therefore serve as independent bases on which to assign a disability rating,

and (2) he suffers from symptoms included in the criteria for both a 20% and 40% disability rating.

Appellant's Brief (Br.) at 10-15. Mr. Cullen then argues that the Board incorrectly applied 38 C.F.R.

§ 4.71a, Diagnostic Code 5201, to determine that only a 20% disability rating was warranted for his

right shoulder and right side of back condition. Instead, he contends, the September 2004 VA

examination on which the Board relied in fact supports a 30% disability rating for that condition.5

Appellant's Br. at 15-18. He requests that the Court reverse the Board's decision and award a 20%

disability rating and a 40% disability rating for his thoracic spine condition, and a 30% disability

rating for his right shoulder and back condition, due to limited range of motion.

In response, the Secretary rejects Mr. Cullen's first argument as unsupported by regulations

and existing caselaw. However, the Secretary concedes that the Board's discussion of the effects of

pain on Mr. Cullen's function is not supported by adequate reasons or bases. Therefore, the Secretary

argues, remand, not reversal, is the appropriate remedy for each of Mr. Cullen's claims.

4

Section 4.71a provides a general rating formula for diseases and injuries of the spine. For a 20% disability

rating of the thoracic spine, the regulation requires "[f]orward flexion of the thoracolumbar spine greater than 30 degrees

but not greater than 60 degrees;" for a 40% disability rating of the thoracic spine, the regulation requires "forward flexion

of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine." 38 C.F.R.

§ 4.71a.

5

Diagnostic Code 5201 provides for a 30% disability rating where there is limitation of motion of the major

arm "[m]idway between side and shoulder level," and for a 20% disability rating where the limitation of motion is "[a]t

shoulder level." 38 C.F.R. § 4.71a, Diagnostic Code 5201.

4

II. ANALYSIS

A. Entitlement to Two Disability Ratings for One Condition

1. VA's Interpretation of 38 C.F.R. § 4.71a

A Board determination of the appropriate degree of disability under the rating code 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). However, here, the Court is asked to determine

whether the Secretary's interpretation of 38 C.F.R. § 4.71a (specifically, the rating formula for

diseases and injuries of the spine) as permitting the assignment of only one disability rating is proper,

a legal question that the Court reviews de novo. 38 U.S.C. § 7261(a)(1); see Smith v. Gober,

14 Vet.App. 227, 230 (2000). The regulation at issue in this matter is 38 C.F.R. § 4.71a, the rating

schedule for disabilities of the musculoskeletal system. Of particular concern to Mr. Cullen is the

"General Rating Formula for Diseases and Injuries of the Spine," which corresponds to Diagnostic

Codes 5235-5243 and provides the following:

With or without symptoms such as pain (whether or not it radiates), stiffness, or

aching in the area of the spine affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine. . . . . . . . . . . . . . . . 100[% disability rating]

Unfavorable ankylosis of the entire thoracolumbar spine . . . . . . . . . . . . . . . . . . . . 50

Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the

thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire

thoracolumbar spine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of

the entire cervical spine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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

than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but

not greater than 30 degrees; or, the combined range of motion of the thoracolumbar

spine not greater than 120 degrees; or, the combined range of motion of the cervical

spine not greater than 170 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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

than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but

5

not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine

greater than 120 degrees but not greater than 235 degrees; or, combined range of

motion of the cervical spine greater than 170 degrees but not greater than 335

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

percent or more of the height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

38 C.F.R. § 4.71a (2010).

Mr. Cullen contends that because the criteria for each spinal disability rating are written in

the disjunctive, the criteria provide "independent bases for establishing either a 20-percent or 40-

percent rating" for his thoracic spine disability. Appellant's Br. at 4. More precisely, Mr. Cullen

contends that, because he has symptoms that match one of the criteria necessary for a 20% disability

rating (muscle spasm or guarding severe enough to result in an abnormal spinal contour with

kyphosis) and one of the criteria necessary for a 40% disability rating (favorable ankylosis of the

entire thoracic spine), and because those criteria are not "duplicative or overlapping," he is entitled

to two disability ratings for his thoracic spine condition. Appellant's Br. at 5. Moreover, at oral

argument, Mr. Cullen asserted that the Secretary's interpretation of this portion of § 4.71a–that he

is entitled to only one disability rating for his thoracic spine condition–should be invalidated because

it is unreasonable.

VA rejects Mr. Cullen's interpretation of § 4.71a and argues that existing regulations and

caselaw make it clear that a claimant may be awarded only one disability rating for a particular

condition, absent express contrary authorization in the regulation. At oral argument, the Secretary

noted that this question had never been raised prior to Mr. Cullen's case, a fact that accounts for the

lack of VA General Counsel Precedent Opinions or other question-specific interpretation on the

matter. However, prior to oral argument, the Secretary submitted additional relevant authority,

specifically, the notice of proposed rulemaking to amend the portion of § 4.71a at issue in this case.

The Secretary argues that that document provides insight into his interpretation of the general rating

formula for diseases and injuries of the spine prior to the litigation of this case.

In Cathedral Candle Co. v. U.S. Int'l Trade Commission, the United States Court of Appeals

for the Federal Circuit (Federal Circuit) described the substantial level of deference generally

afforded to an agency's interpretation of its own regulation, noting that the interpretation is "'of

6

controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" 400 F.3d 1352,

1364 (Fed. Cir. 2005) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).

Such generous deference is due even when the agency's interpretation is presented in a brief during

the litigation stage, as long as there is "'no reason to suspect that the interpretation does not reflect

the agency's fair and considered judgment on the matter in question.'" Id. (quoting Auer v. Robbins,

519 U.S. 452, 461-62 (1997) (noting that deference must be afforded to an agency's interpretation

of a regulation even where that interpretation is first advanced in a legal brief if that position

articulates a well established agency practice)).

The Court concludes that Mr. Cullen's argument, although creative, is not persuasive. The

language of the regulation, read as a whole, makes clear that the regulation prohibits multiple

disability ratings for a single spinal disability, except in certain circumstances. In note 1, the rating

specialist is specifically directed to evaluate particular symptoms, specifically, "associated objective

neurologic abnormalities," under the "appropriate diagnostic code." 38 C.F.R. § 4.71a, Diagnostic

Codes 5234-5243, note 1. This statement indicates that there are some circumstances under which

an additional disability rating for symptoms related to a spinal disability is warranted. Mr. Cullen

does not suggest that either of his claimed symptoms are neurologic abnormalities warranting an

additional disability rating. Similarly, note 6 states that when a claimant has disabilities of both the

cervical and thoracolumbar spine, the resulting disabilities are to be rated separately, i.e., may be

assigned separate disability ratings under the general rating formula.6 The implication of this

statement is that where a claimant's disability involves only the thoracolumbar spine, as Mr. Cullen's

does, he is entitled to only one disability rating for that condition.

Turning to VA's notice of proposed rulemaking, published in the Federal Register in

September 2002 (prior to the final rule's enactment in November 2003), the Court finds similar

support for the Secretary's position. VA proposed to amend VA's "Schedule for Rating Disabilities

by revising that portion of the Musculoskeletal System that addresses disabilities of the spine."

67 Fed. Reg. 56,506 (Sept. 4, 2002). VA stated that it intended to "revise the evaluation criteria for

rating disabilities of the spine by establishing a general rating formula that will apply to all diseases

6

The note provides an exception where there is "unfavorable ankylosis of both segments," in which case they

are to be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5234-5243, note 6.

7

and injuries of the spine." 67 Fed. Reg. at 56,510. VA explained its proposal to include note 1,

discussed above, stating that such direction to other diagnostic codes for evaluation of neurologic

abnormalities was necessary because the variety of neurologic abnormalities that might stem from

diseases and injuries of the spine made it impractical to include them in the proposed rating schedule,

which concerned only orthopedic limitations. This statement implies that separate disability ratings

would be available for some kinds of disabilities that stem from spinal disabilities (i.e., neurologic

disabilities), but that one disability rating would be assigned under the general rating formula for any

orthopedic limitations that arose.

VA also proposed 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. (emphasis added). This

statement directly supports the Secretary's argument that disability ratings are assigned based on a

"condition," rather than on any symptoms of a particular condition, which is essentially what Mr.

Cullen's argument boils down to. In fact, ankylosis of the thoracic spine is the basis for Mr. Cullen's

asserted entitlement to a separate 40% disability rating in this case. It is clear, however, that VA

intended to do away with separate disability ratings for ankylosis and instead rate spinal conditions

(i.e., disabilities) that include ankylosis as a symptom.

Additionally, VA proposed to eliminate the diagnostic code for lumbosacral strain "based

on pain, muscle spasm, limitation of motion, listing of the spine, loss of lateral motion with

osteoarthritic changes, etc." 67 Fed. Reg. at 56,512. VA stated that it would move lumbosacral

strain to Diagnostic Code 5237 (that is, within the general formula for rating disabilities or injuries

of the spine), "which would include criteria adequate for its evaluation." Id. Again, the fact that VA

eliminated a separate diagnostic code that could be based on muscle spasms (among other

symptoms7) and instead included muscle spasms as one of the criteria included in several of the

disability ratings for the spine demonstrates VA's intent to eliminate the possibility of assigning a

7

The general rating formula for the spine states that the formula will be applied "with or without symptoms such

as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease."

38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243; see 68 Fed. Reg. 51,454 (Aug. 27, 2003).

8

separate disability for that symptom in addition to a disability rating for the overarching spinal

condition. VA's final rule, published in August 2003, confirms this:

Pain alone cannot be evaluated without being associated with an underlying

pathologic abnormality. In the case of spine disabilities, it would be rare for pain not

to be present. Pain is often the primary factor limiting motion, for example, and is

almost always present when there is muscle spasm. Therefore the evaluation criteria

provided are meant to encompass and take into account the presence of pain,

stiffness, or aching, which are generally present when there is a disability of the

spine.

68 Fed. Reg. at 51,454-55. Further: "[W]e developed evaluation criteria that are meant to take pain

and other symptoms into account. Therefore an evaluation based on pain alone would not be

appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the

neurologic sections of the rating schedule." 68 Fed. Reg. at 51,455.

These statements by VA, made long before the question arose before the Court, make clear

when a separate disability rating is warranted–for example in the case of neurologic abnormalities,

or when a claimant has both thoracic and cervical spine disabilities. These statements also make

clear VA's position that separate disability ratings are not to be assigned for different symptoms of

an underlying spinal condition, such as pain, ankylosis, or muscle spasms. The Court concludes that

VA's position is consistent both with the regulation itself and with VA's demonstrated interpretation

of the regulation and is therefore due substantial deference from the Court. See Auer, 519 U.S. at

461-62; Cathedral Candle Co., 400 F.3d at 1364. Mr. Cullen has not carried his burden of

demonstrating that the Secretary's interpretation or position is unreasonable. See Reizenstein v.

Shinseki, 583 F.3d 1331, 1336 (Fed. Cir. 2009) ("In order to defeat the VA's claim to deference, [the

appellant] must give us a 'reason to suspect that the interpretation does not reflect the agency's fair

and considered judgment on the matter in question.'" (quoting Cathedral Candle Co., 400 F.3d at

1364)).

2. Applicability of Other Regulations

Mr. Cullen's argument that he is entitled to two disability ratings for his thoracic spine

condition is also not supported by other regulations. Under 38 C.F.R. § 4.7, "Where there is a

question as to which of two evaluations shall be applied, the higher evaluation will be assigned if

the disability picture more nearly approximates the criteria required for that rating. Otherwise, the

9

lower rating will be assigned." This regulation clearly indicates that only one disability rating per

diagnostic code may be assigned and that it will be based on the overall disability picture. Moreover,

the Federal Circuit has held that a veteran simply "cannot be compensated more than once for the

same disability." Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008); see 38 C.F.R. § 4.14 (2010)

("The evaluation of the same disability under various diagnoses is to be avoided.").

Mr. Cullen is correct that 38 C.F.R. § 4.25(b) entitles veterans to have "the disabilities arising

from a single disease entity . . . rated separately" (emphasis added) and the individual disability

ratings combined. However, he asks the Court to interpret that regulation as permitting separate

disability ratings to be based on individual symptoms of a disability, rather than on separate

disabilities. For example, Mr. Cullen would have the Court find that his individual symptoms

(favorable ankylosis of the entire thoracic spine and muscle spasm or guarding severe enough to

result in an abnormal spinal contour with kyphosis) are sufficient to assign two separate disability

ratings for the effects of one disabling condition (degenerative joint disease of the thoracic spine).

That is not permitted. See Boggs, 520 F.3d at 1337; cf. Bradley v. Peake, 22 Vet.App. 280, 290-91

(2008) (stating that § 4.25 requires that "all disabilities are to be rated separately" and noting few

exceptions to that rule (emphasis added)).

Mr. Cullen's suggestion at oral argument that the criteria of § 4.71a relating to the spine

would have been written in the conjunctive if separate disability ratings were not permitted for spinal

disabilities ignores the fact that the spine is made up of three distinct parts–the cervical spine, the

thoracic spine, and the lumbar spine–and that the disputed portion of § 4.71a is a "general" rating

formula for diseases and injuries of the spine. Accordingly, both the 20% and 40% disability ratings

provide criteria applicable to either the cervical spine or the thoracic spine. See 38 C.F.R. § 4.71a.8

If the criteria were written in the conjunctive, a claimant would have to show disabilities of both the

thoracic and cervical spines to establish entitlement to compensation. The Court is therefore not

persuaded by this argument.

8

The Court notes that, for rating purposes, § 4.71a combines the thoracic and lumbar spines and provides

criteria for rating disabilities of the "thoracolumbar spine."

10

3. Appellant's Reliance on Caselaw and VA General Counsel Precedent Opinion 9-2004

In several of the cases on which Mr. Cullen relies, discussed below, the Court found that the

Board erred in requiring a claimant to show each of the various symptoms listed in the rating

schedule for a particular disability rating for the claimant's alleged condition, when those criteria

were written in the disjunctive form. In Drosky v. Brown, for instance, the appellant was seeking

a 30% disability rating for rheumatic heart disease, and the criteria for that rating were

inactive rheumatic heart disease "[f]rom the termination of an established service

episode of rheumatic fever, or its subsequent recurrence, with cardiac manifestations,

during the episode or recurrence, for 3 years, or diastolic murmur with characteristic

EKG manifestations or definitely enlarged heart."

10 Vet.App. 251, 254 (1997) (quoting 38 C.F.R. § 4.104, Diagnostic Code 7000 (1996)) (emphasis

added). There, the Secretary conceded, and the Court agreed, that the Board had erred by requiring

that the veteran have both a diastolic murmur with EKG manifestations and a definitely enlarged

heart to qualify for a 30% disability rating. Id. at 255. Similarly, in Johnson v. Brown, the Court

found that the Board had erred in requiring a claimant to satisfy all of the disjunctively written

criteria in 38 C.F.R. § 4.132 (1994) for a 100% disability rating for post-traumatic stress disorder.

7 Vet.App. 95, 99 (1994) ("[U]pon remand the Board shall determine whether the appellant's [post-

traumatic stress disorder] disability meets any one of the three independent criteria required for a

100% [post-traumatic stress disorder] rating. If the Board determines that one of the criteria is met,

it shall award a 100% rating." (emphasis added)). These cases establish that disjunctive criteria for

a particular disability rating are independent bases on which to assign a single particular disability

rating. Neither case supports the interpretation of the assignment of disability ratings that Mr. Cullen

puts forth.

Mr. Cullen's reliance on Esteban v. Brown, 6 Vet.App. 259 (1994), is similarly misplaced.

The Court's holding in Esteban, that the "critical element" of whether separate disability ratings are

permitted is whether the symptomatology of each rating is "distinct and separate," 6 Vet.App. at 262,

cannot be divorced from the context of that case. In Esteban, the appellant had four scars on his face

as a result of a vehicle accident in service and had been assigned a 10% disability rating under

38 C.F.R. § 4.118, Diagnostic Code 7800 (1993) (disfiguring scars). The Board determined that the

appellant's scars might also have been properly evaluated under two additional diagnostic codes,

11

7804 (painful scars) or 5325 (facial muscle injury), but determined that the appellant was entitled

to only one 10% disability rating, not three separate 10% disability ratings (to be combined under

§ 4.25), because "'the evidence of record shows that the residual of an injury to the right side of the

veteran's face is compatible with, but does not meet[,] any of the schedular criteria for a rating higher

than 10 percent.'" 6 Vet.App. at 260. The Court, however, found:

The condition embodied in a rating under [Diagnostic Code] 7800 is entirely

cosmetic in nature. Such rating does not contain any component of pain or muscle

damage. The critical element is that none of the symptomatology for any one of these

three conditions is duplicative of or overlapping with the symptomatology of the

other two conditions. Appellant's symptomatology is distinct and separate . . . . Thus,

as a matter of law, appellant is entitled to combine his 10% rating for disfigurement

under [Diagnostic Code] 7800 with an additional 10% rating for tender and painful

scars under [Diagnostic Code 7804] and a third 10% rating for facial muscle injury

interfering with mastication under [Diagnostic Code] 5325.

Id. at 261-62. Esteban, a case involving three separate "conditions" or disabilities–as emphasized

by the assignment of three separate disability ratings under three separate diagnostic codes–is easily

distinguishable from Mr. Cullen's case, in which he seeks two separate disability ratings for the same

condition or disability–degenerative joint disease of the thoracic spine–under one diagnostic code.

The Court is not persuaded that Esteban can be fairly read to support Mr. Cullen's argument.

Similarly, the Court also finds Mr. Cullen's reliance on VA General Counsel Precedent

Opinion 9-2004 misplaced. That opinion addressed whether a veteran can receive separate disability

ratings under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 (leg, limitation of flexion) and 5261 (leg,

limitation of extension) for the same joint. VA General Counsel determined that, in some

circumstances, separate disability ratings could be assigned (and combined under § 4.25) without

constituting pyramiding, which is prohibited by § 4.14. The General Counsel stated:

[T]he key consideration in determining whether rating under more than one

diagnostic code is in order is whether the ratings under different diagnostic codes

would be based on the same manifestation of disability or whether none of the

symptomatology upon which the separate ratings would be based is duplicative or

overlapping.

VA Gen. Coun. Prec. 9-2004 (Sep. 17, 2004) (emphasis added). As in Esteban, the key difference

between the question the General Counsel was asked to resolve and Mr. Cullen's case is that the

12

General Counsel was asked to determine when separate disability ratings under two particular,

different diagnostic codes is proper, not whether separate disability ratings can be assigned under

the same diagnostic code. Accordingly, the Court rejects Mr. Cullen's argument on this issue.9

4. Summary

We hold that, within a particular diagnostic code, a claimant is not entitled to more than one

disability rating for a single disability unless the regulation expressly provides otherwise. To find

otherwise would permit absurd results–compensation twice for the same condition–and not only in

the case of diseases and injuries of the spine. For example, under 38 C.F.R. § 4.97, the rating

schedule for disabilities of the respiratory system, Diagnostic Code 6846 (sarcoidosis) contains

disjunctive criteria that are not "duplicative or overlapping," such that a claimant who had both

pulmonary and cardiac involvement would be entitled to both a 60% and a 100% disability rating

for the same condition under Mr. Cullen's interpretation. Similarly, under 38 C.F.R. § 4.119 (2010),

the rating schedule for disabilities of the endocrine system, a 10% disability rating can be awarded

under numerous diagnostic codes when continuous medication is required for control, but that

requirement does not appear in the criteria for any of the higher disability ratings. According to Mr.

Cullen's logic, a claimant who suffered from, for example, hyperthyroidism and required continuous

medication to control that condition but who also experienced tachycardia, tremor, and increased

pulse or blood pressure related to or caused by that condition would be entitled to both a 10%

disability rating based on the need for medication and a 30% disability rating for the other

symptoms. See 38 C.F.R. § 4.119, Diagnostic Code 7900. As discussed above, this is simply not

contemplated by the rating schedule.

B. Reasons or Bases

In his brief, and at oral argument, the Secretary conceded that the Board's reasons or bases

for denying Mr. Cullen's claims were inadequate. In rendering its decision, the Board is required to

provide a written statement of the reasons or bases for its "findings and conclusions[] on all material

issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be

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If Mr. Cullen believes that the current disability rating assigned does not adequately compensate him for the

practical effects of his disability, the proper recourse is to seek extraschedular consideration. See 38 C.F.R. § 3.321(b)(1)

(2010).

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adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to

facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).

In DeLuca v. Brown, the Court held that 38 C.F.R § 4.40 requires that the disabling effect

of painful motion be considered when rating joint disabilities. 8 Vet.App. 202, 205-06 (1995).

Pursuant to § 4.40, a "[d]isability of the musculoskeletal system is primarily the inability, due to

damage or infection in parts of the system, to perform the normal working movements of the body

with normal excursion, strength, speed, coordination and endurance." Further, under § 4.40,

functional loss "may be due to pain, supported by adequate pathology and evidenced by the visible

behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion,

and a part which becomes painful on use must be regarded as seriously disabled." With regard to

the joints, 38 C.F.R. § 4.45 provides that "the factors of disability reside in reductions of their normal

excursion of movements in different planes." When rating disabilities of joints, including the spine,

the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or

fatigue. DeLuca, 8 Vet.App. at 205-06.

1. Thoracic Spine

Here, the Board's discussion of the effects of pain, weakness, or fatigue is conclusory and

without supporting rationale:

There is no question in this case that pain is a component of the veteran's disability.

Nevertheless, the Board finds that the effects of pain reasonably shown to be due to

the veteran's service-connected degenerative joint disease of the thoracolumbar spine

are contemplated in the 20 percent rating currently assigned. The competent

evidence of record does not show that pain, fatigue, weakness and lack of endurance

following repetitive use causes forward flexion of the thoracolumbar spine to be

limited to 30 degrees or less or to be equivalent to favorable ankylosis. While

repetitive motion reportedly added additional limitation, the Board is of the opinion

that even considering this additional limitation as reported by the VA examiner the

veteran's disability picture more nearly approximates the criteria required for the 20

percent rating (forward flexion limited to between 30 and 60 degrees).

R. at 19 (citations omitted). This explanation tacitly acknowledges that the September 2004 VA

examiner determined that Mr. Cullen's "thoracic spine [wa]s painful on motion, and there [wa]s

additional limitation of the thoracic spine with pain, fatigue, weakness, and lack of endurance

following repetitive use and during the flare-up." R. at 243. The Court, however, perceives two

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problems with the physician's statement: First, that statement is less than helpful to the Board in

reaching a conclusion on this issue because it lacks any specifics regarding the effects of the

additional limitation of motion of the spine. Second, despite this shortcoming, not only did the

Board opt to rely on such a conclusory statement, but also the Board failed to explain its conclusion

any more thoroughly than did the VA examiner. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.2 (2010)

(stating that if an examination report does not contain sufficient detail, "it is incumbent upon the

rating board to return the report as inadequate for evaluation purposes"); see also Bowling v.

Principi, 15 Vet.App. 1, 12 (2001) (emphasizing Board's duty to return inadequate examination

report). Accordingly, the Court's ability to review the Board's decision on this claim has been

frustrated, and vactur and remand is necessary. See Tucker v. West, 11 Vet.App. 369, 374 (1998)

(holding that remand is warranted where the Board's reasons or bases are inadequate). On remand,

the Board should seek clarification and a more specific description from the VA examiner regarding

the extent of the additional limitations Mr. Cullen experiences due to pain, weakness, and fatigue–or

provide a new, thorough medical examination–and readjudicate Mr. Cullen's claim.

To the extent that Mr. Cullen contends that the Board erred in not assigning a single 40%

disability rating for his thoracic spine condition, the Court need not address that argument at this

time. Because the Court has determined that vacatur and remand is warranted for this claim, the

Board will be required to readjudicate Mr. Cullen's claim and provide a new statement of reasons

or bases for its decision, which will necessarily include a discussion of whether a 40% disability

rating is warranted. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) ("A narrow

decision preserves for the appellant an opportunity to argue those claimed errors before the Board

at the readjudication, and, of course, before this Court in an appeal, should the Board rule against

him.").

2. Residuals of Shrapnel Wound

Here, the Board's discussion of the additional limitations due to pain, weakness, or fatigue

is very similar to that contained in its discussion of Mr. Cullen's claim for benefits for a thoracic

spine condition. The Board wrote:

There is no question in this case that pain is a component of the veteran's disability.

Nevertheless, the Board finds that the effects of pain reasonably shown to be due to

the veteran's service-connected residuals of shrapnel wound to the right shoulder and

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right side of back are contemplated in the 20 percent rating currently assigned. While

the September 2004 VA examiner reported that pain, fatigue, weakness, and lack of

endurance following repetitive use resulted in inability to lift objects with the right

shoulder, taking this into consideration, the Board is still of the opinion the overall

disability picture more nearly approximates moderately severe disability of muscle

group XX, as opposed to severe. The additional limitation resulting from pain and

functional loss also still more nearly approximates limitation of the arm to shoulder

level, as opposed to midway between side and shoulder level.

R. at 12-13 (citations omitted).

The Court perceives two problems with this explanation as well: First, the Board's statement

that the additional functional limitation more nearly approximates a moderately severe disability is

conclusory and unsupported by any further explanation. Second, as the Secretary concedes, the

Board did not address the fact that the September 2004 VA examination found that Mr. Cullen's

flexion of the right arm/shoulder was limited to 60 degrees, which appears to support Mr. Cullen's

assertion that his disability limits the range of motion of his right arm to midway between his side

and his shoulder and therefore entitles him to a 30% disability rating. See R. at 241; 38 C.F.R.

§ 4.71a, Diagnostic Code 5201; Secretary's Br. at 10-11. The Court therefore concludes that the

Board's reasons or bases for denying entitlement to an increased disability rating for this condition

are inadequate, and vacatur and remand is required so that the Board can adequately explain its

conclusions or conduct further development to obtain the information and evidence necessary to

adjudicate Mr. Cullen's claims. See Tucker, 11 Vet.App. at 374.

On remand, Mr. Cullen is free to submit additional evidence and argument with respect to

both of his claims, 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 decision." Fletcher

v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in

accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).

III. CONCLUSION

Upon consideration of the foregoing, the February 27, 2008, Board decision is VACATED

and the matters are REMANDED for readjudication consistent with this decision.

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