Adjust Font Size:

Board Relies on Inadequate Reasons and Bases to Deny Increased Rating and SMC for Radiculopathy

Board Relies on Inadequate Reasons and Bases to Deny Increased Rating and SMC for Radiculopathy

Summary of the Case

The Veteran served on active duty from August 1967 to August 1969, including service in Vietnam.  Several months after discharge, he filed a claim for VA disability benefits for a back condition.  VA granted service connection for a chronic lumbosacral strain and assigned a 10 percent disability rating under 38 CFR § 4.71a, Diagnostic Code (DC) 5295, effective August 1969.  In November 2007, the Veteran was diagnosed with radiculopathy for which he was subsequently assigned a 10 percent disability rating due to mild incomplete paralysis under 38 CFR § 4.124a, DC 8520.  In June 2016, VA continued the 10 percent disability rating for his left lower extremity effective November 2007, but increased this rating to 60 percent from May 31, 2016.  After several appeals and Board of Veterans’ Appeals remands for additional development, the Board issued a decision in November 2017 that awarded a 20 percent disability rating for radiculopathy of the left lower extremity before August 13, 2014, and a 60 percent disability rating thereafter.  In this decision, the Board also denied entitlement to special monthly compensation (SMC) for loss of use of the left foot.

In its decision, the Board concluded that before August 13, 2014, the Veteran’s radiculopathy of the left lower extremity did not warrant a disability rating in excess of 20 percent under DC 8520.  Specifically, the Board noted that the Veteran experienced sensory disturbances, such as moderate constant pain, severe numbness, tingling, weakness, moderate paresthesias and dyesthesias, as well as slight nonsensory changes as evidenced by motor and reflex testing.  Nonetheless, the Board determined that his radiculopathy did not result in some of the more severe organic changes such as muscle atrophy and excruciating pain.

CCK appeals the Board decision denying an increased rating for radiculopathy

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied (1) a disability rating higher than 20 percent for radiculopathy of the left lower extremity before August 13, 2014, and 60 percent thereafter, and (2) entitlement to SMC based on loss of use.  CCK argued that the Board failed to explain why the Veteran’s left lower extremity was characterized as “moderate,” warranting a 20 percent disability rating rather than “moderately severe,” warranting a 40 percent rating.  Specifically, CCK asserted that the Board did not provide adequate reasons or bases for awarding a disability rating no higher than 20 percent prior to August 13, 2014.  The Court agreed that the Board provided inadequate reasons or bases when it used the absence of muscle atrophy and excruciating pain to deny a 40 percent rating because those symptoms are contemplated by the 60 percent rating criteria.  The Court also acknowledged that the Board is not bound by its M21-1 Adjudications Manual, but must address its provisions.  In this case, the M21-1 provisions described symptoms that supported a higher rating for the Veteran.

CCK further argued that the Board provided an inadequate statement of reasons and bases for not awarding SMC based for loss of use of the Veteran’s left foot.  Here, the Court determined that the issue of SMC was inextricably intertwined with the Veteran’s increased rating claim.  Accordingly, both issues must be remanded back to the Board for readjudication.

To read the Court’s full decision, click here.

Category: Court Wins

CONTACT US FOR A FREE CASE EVALUATION











SUGGESTED READING

To Top
Click to call
Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages
x

CONTACT US FOR A FREE CASE EVALUATION