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Court Wins

Court Determines Ankylosis Is an Objective Finding in Precedential Decision

Michael Lostritto

March 17, 2022

Updated: November 20, 2023


On April 16, 2021, the United States Court of Appeals for Veterans Claims (Court) issued a precedential decision regarding the application of 38 CFR § 4.40 and 4.45 and increased ratings for limitation of motion.

The Court determined that application of sections 4.40 and 4.45 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 evaluation.  The Court also resolved that nothing in the “regulation or our case law suggests that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in essence, a complete limitation of motion.”

Summary of the Case

The Veteran served honorably in the United States Army from May 1975 to April 1976.  In August 1976, the Department of Veterans Affairs (VA) granted service connection at an initial noncompensable rating for a lower back strain.

In January 1999, VA increased his rating to 20 percent, recharacterizing it as a lower back strain with herniated nucleus pulposus.  Then, in 2008, the Veteran filed a claim requesting VA to address the “disability classification for [his] lower back injury”, which VA construed as a claim for an increased rating.  He reported at that time that his pain level was a 10/10.

In a February 2009 decision, VA increased the lumbar spine rating from 20 to 40 percent based on a December 2008 VA examination.  In November 2009, the Veteran filed a Notice of Disagreement with VA’s decision, seeking a rating higher than 40 percent.

In December 2015, the case reached the Board of Veterans’ Appeals (Board).  The Veteran testified to the episodic pain in his back and legs and described the severity of his several past episodes.  The Board remanded the issue for further development.

In a February 2017 VA exam, the examiner determined that this exam was being conducted during a flare-up and the Veteran’s functional ability was not significantly limited by his back injury.  The examiner also noted no signs of radiculopathy, ankylosis, or other secondary conditions resulting from his spine disability.

In a November 2017 addendum opinion, another VA examiner determined the Veteran suffered from moderate bilateral radiculopathy in his legs due to his lower back injury.

In December 2017, VA continued the denial of an increased rating for his lumbar spine disability.  Then, in January 2018, VA granted service connection for bilateral radiculopathy with a 10 percent rating for each leg.  These ratings were later increased from 10 to 20 percent.

Board Denies Increased Rating for Spine Disability

In an April 2018 decision following another appeal, the Board denied a rating higher than 40 percent for the Veteran’s lumbar spine disability.

The Board determined that the Veteran was not entitled to an increased rating for his spine condition because he was not diagnosed with ankylosis.  The Board found that, under Johnston v. Brown, 38 CFR § 4.40 and 4.45 did not apply to the Veteran’s spine evaluation because he already had the highest available rating based on limitation of motion.

The Board also denied ratings higher than 20 percent for the Veteran’s bilateral radiculopathy.

CCK Argues Board Erred in Disregarding Existing Case Law

In November 2019, Chisholm Chisholm & Kilpatrick LTD represented the Veteran in an oral argument before the Court.

CCK argued that application of 38 CFR § 4.40 and 4.45 permits consideration of an evaluation based on ankylosis if a claimant’s functional loss is equivalent of ankylosis.  Ankylosis is an objective finding, not a diagnosis, according to VA law.  CCK contended that the Board disregarded “regulatory language of existing case law” when not applying 4.40 and 4.45.

CCK argued that the Board’s reliance on Johnston v. Brown was incorrect because the Veteran’s disability more nearly approximated the functional equivalent of ankylosis and therefore qualified for a higher rating.  Furthermore, the Board did not explain why sections 4.40 and 4.45 were not applied.

CCK also contended that the Board relied on inadequate VA examinations that did not detail the extent of the Veteran’s functional loss, especially during flare ups.  Such information would have been critical as his flare-ups rendered him unable to move, which is the functional equivalent of ankylosis.  Therefore, he was not receiving the maximum rating under diagnostic code 5237 (lumbosacral or cervical strains).

Court Addresses Question of Board Jurisdiction

The second issue addressed by the Court – whether the Board erred in denying ratings in excess of 20 percent for bilateral radiculopathy – turned into a question of Board jurisdiction.

Initially, VA asserted that the Board had jurisdiction over the radiculopathy claim.  However, a few months later VA filed a notice with the Court that the Board “technically did not have jurisdiction” since the Veteran had not filed a Notice of Disagreement following the January 2018 VA rating decision that granted service connection for radiculopathy.

CCK argued that the Board had jurisdiction over the radiculopathy ratings as they were part of the Veteran’s request for a higher rating for his spine disability.  CCK also mentioned that the Veteran’s 2009 Notice of Disagreement expressed disagreement with a rating decision that did not address neurologic complications.

The Court concluded that based on the procedural history and VA’s duty to sympathetically construe pleadings, the radiculopathy issue could be considered part of his claim for seeking a higher rating for his spine disability.  However, the Court left “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.”

Judge Amanda L. Meredith dissented, writing that the Board legally erred when claiming jurisdiction over the radiculopathy issue.  She also called out VA for changing its position multiple times.

Judge Meredith did, however, acknowledge that this may have led the Veteran to believe he did not need to appeal the radiculopathy rating decision and would raise “a serious question as to what recourse should be available to the appellant.”

Court Issues Precedential Decision

On April 16, 2021, the Court issued a precedential decision, finding that the “provisions of [sections] 4.40 and 4.45 are for application when evaluating joint disabilities and their manifestations, which may include ankylosis.”

The Court agreed with CCK’s assertion that the Board’s April 2018 decision was “clearly erroneous.”  According to the Court, the Board is required to discuss all “potentially applicable provisions of law and regulation” and therefore committed an error of law when not considering sections 4.40 and 4.45.

The Court set aside the April 2018 Board decision and remanded the issues of entitlement to higher ratings for the Veteran’s lumbar spine disability and bilateral radiculopathy.

To learn more about CCK’s arguments and the Court’s precedential decision, please refer to the full decision.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

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