Chavis v McDonough: A Fight About Definitions

Veterans benefits fight over definitions

Chavis Appeals Denied Disability Rating

In 1976, Chavis was granted service connection for a low back strain, which initially resulted in a noncompensable evaluation. However, in 1999, the Regional Office (RO) reclassified his lumbar spine disability and raised the evaluation to 20%. After nearly a decade, in 2008, Chavis filed a claim for an increased evaluation, which led to the RO increasing the lumbar spine evaluation to 40%. However, Chavis believed that his disability rating should be further increased due to his lumbar spinal disability and radiculopathy. He appealed the decision of the Board of Veterans' Appeals (BVA), which had denied his request for an increased disability rating. Chavis argued that evidence of the functional equivalent of ankylosis should be taken into consideration, as it can satisfy the General Rating Formula's requirement for ankylosis. The Court of Appeals for Veterans Claims (CAVC) reviewed Chavis's case and determined that the BVA had failed to evaluate whether Chavis's symptoms met the functional equivalent of ankylosis. The CAVC found that this evaluation was necessary for proper adjudication. As a result, the CAVC remanded the case back to the BVA for readjudication. Additionally, the CAVC noted that the BVA had inadequately explained its denial of Chavis's claim for an increased disability rating for radiculopathy. This lack of explanation further supported Chavis's appeal and the need for a thorough reconsideration of his case. Chavis's legal battle continues as he seeks fair and appropriate compensation for his disabilities. His appeal highlights the importance of comprehensive evaluations and clear explanations in the VA disability rating process. The outcome of his case could have significant implications for veterans seeking increased disability ratings for similar conditions.

Chavis's Journey and Claim History

Chavis's journey navigating his disability claims began in 2009 when he filed a Notice of Disagreement (NOD) to appeal his claims related to past back issues. It was during a medical examination in 2011 that Chavis reported persistent low back pain, which the examiner documented along with limited mobility. In his quest for relief, Chavis sought treatment for chronic low back pain in 2012 and consulted a clinician who diagnosed him with episodic discogenic pain. However, when the Regional Office (RO) reviewed his case, they argued that the VA examiner in December 2011 did not consider radiculopathy as a separate diagnosis. Despite Chavis's ongoing claims of constant pain and limited mobility, the RO denied his request for an evaluation higher than 40% for his lumbar spine disability in December 2017. However, in January 2018, the RO did grant service connection for right and left lower extremity radiculopathy. Throughout the entire process, Chavis consistently testified about the episodic nature of his back and leg symptoms, detailing periods of immobility and excruciating pain.

Board's Decision and Remand

Upon review, the Board examined several issues pertaining to Mr. Chavis's disability claims, specifically focusing on his lumbar spine disability and lower extremity radiculopathy. After conducting a VA examination, it was determined that there were no signs of radiculopathy, ankylosis, or intervertebral disc syndrome (IVDS) in his lumbar spine. Based on this assessment, the Board concluded that Mr. Chavis did not meet the criteria for an evaluation higher than 40% and that 38 C.F.R. §§ 4.40 and 4.45 were not applicable to his case. In response to the Board's findings, the RO requested an addendum medical opinion which confirmed the presence of radiculopathy symptoms in Mr. Chavis's condition. However, the Board denied evaluations higher than 20% for his radiculopathy, citing that it did not reach the classification of "moderately severe." The Secretary asserts that the General Rating Formula does not take into account the functional equivalent of ankylosis, while Mr. Chavis argues that the Board erred in disregarding the impact of §§ 4.40 and 4.45 on his lumbar spine evaluation. He maintains that in the Johnston case, the court ruled that the Board should consider additional functional loss due to pain, rather than solely relying on the maximum evaluation for a specific diagnostic code.

Analyzing the Court's Ruling on Ankylosis and Radiculopathy Evaluations

In the court case discussed above, the Secretary's perspective on ankylosis and the Board's decision came into question. The Secretary argued that the absence of ankylosis on multiple examinations justifies the denial of an evaluation based on ankylosis. They relied on the Johnston case and stated that evaluations for joint conditions should be based on functional equivalence to ankylosis. However, the court disagreed with the Secretary's perspective and the Board's interpretation of the Johnston case. The court deemed the Board's decision incorrect, stating that sections 4.40 and 4.45 should apply even if a claimant already receives the maximum evaluation under a specific diagnostic code. The court found that the Board erred by not considering these sections and remanded the case for further review. Regarding radiculopathy evaluations, the Secretary clarified that the Board lacked jurisdiction over them. However, Mr. Chavis argued that the evaluations were part of his claim for an increased evaluation for his lumbar spine disability. The court agreed with Mr. Chavis, stating that the issues of increased evaluations and radiculopathy were intertwined with the claim for a higher evaluation for the underlying lumbar spine disability. Therefore, the court remanded the issue of appropriate radiculopathy evaluations due to the Board's failure to articulate the standard used to determine the severity of the disability. It's worth noting that the Board awarded Mr. Chavis a 20% evaluation for bilateral lower extremity radiculopathy based on a VA examiner's opinion. However, higher evaluations were denied without adequate explanation. Consequently, the court remanded the case for readjudication, citing the Board's failure to provide a satisfactory statement of reasons or bases for its determinations. The Board's failure to define subjective terms in DC 8520 left the Court without standards to assess the Board's decision. On remand, Mr. Chavis has the opportunity to submit additional arguments and evidence, which the Board must duly consider. Furthermore, the Board neglected to discuss benchmarks for mild, moderate, moderately severe, and severe peripheral nerve conditions, which it should have considered while providing a reasoned explanation for its decision. Additionally, the Board relied solely on the November 2017 examiner's assessment without reconciling it with other available evidence.

Dissenting Opinion on Jurisdiction Over Radiculopathy

In dissent, Judge Meredith contends that the Board erred in assuming jurisdiction over the unappealed issue of the appropriate disability rating for bilateral radiculopathy. Mr. Chavis originally filed a claim for an increased disability rating for his service-connected lumbar spine condition in November 2008. The VA regional office (RO) subsequently increased his disability rating from 20% to 40% in February 2009. In November 2009, Mr. Chavis filed a Notice of Disagreement (NOD) disputing the assigned rating. As a result, the Board remanded the matter for further development in February 2016. In January 2018, the RO granted secondary service connection and assigned 10% disability ratings for radiculopathy. Mr. Chavis argues that his November 2009 NOD encompassed disagreement with the RO's failure to address entitlement to benefits for radiculopathy. However, the dissent argues that the Board did not acquire jurisdiction over the radiculopathy ratings since Mr. Chavis did not file an NOD in response to the January 2018 RO decision.

Procedural Arguments and Court's Rulings

The appellant argues that filing another Notice of Disagreement (NOD) was not necessary because the Department of Veterans Affairs (VA) is obligated to consider associated neurological complications within the underlying spine claim. Both parties acknowledge that the General Rating Formula clearly states that neurological complications should be connected to service separately. The appellant further contends that the ratings for radiculopathy were already addressed in the low back claim before the Board, based on VA's practice of adjudicating reasonably raised claims. The appellant cites the recent decision in Bailey by the Court, which holds that VA is obligated to develop and adjudicate related claims for secondary service connection. However, the dissent argues that Note 1 does not settle the question of whether disputes regarding a separate grant of benefits for associated neurological abnormalities can be placed into appellate status without filing an NOD. The Court examines the case of Bailey, which resulted in remanding claims for further development and adjudication in regard to secondary service connection. Additionally, the Court refers to the case of Warren, where the Board lacked jurisdiction over the effective date for service connection due to the lack of a Statement of the Case (SOC) in response to an NOD. The Court differentiates the present case from Bailey and Warren, emphasizing that the current case solely involves a single claim stream. The Court argues against the notion that Bailey and Warren support or compel the conclusion that the Board had jurisdiction over the downstream element of disability ratings for the secondarily service-connected condition. Michael L. Chavis, the appellant, argues that the Board made a legal error by assuming jurisdiction over the issue of the appropriate disability rating for radiculopathy. Chavis draws a parallel between the procedural position of his case and matters concerning a total disability rating based on individual unemployability (TDIU), which the Court has determined to be an integral part of the underlying claim for benefits or for an increased rating. The Court distinguishes the current case from those involving TDIU, noting that Chavis was granted a separate disability rating for the complication on a secondary basis. As a result, the Court remands the case for further review. The Court references the case of West v. Principi, which established the requirement for a cause-and-effect relationship between the provided misinformation and the veteran's delayed filing. Furthermore, the Court affirms the decision in Chastain v. Principi. The document also contains a citation for the relevant case, Chavis v. McDonough.

Board's Determination and TDIU Entitlement

The Board of Veterans Appeals approved increased initial evaluations for bilateral radiculopathy and recognized entitlement to a total disability evaluation based on individual unemployability (TDIU). However, the issue of entitlement to TDIU on an extraschedular basis was remanded by the Board. It is important to note that the Court does not have jurisdiction to consider this issue at the moment. Additionally, the Secretary filed an amended record of proceedings and the Court references the Lasègue test, which is utilized to diagnose lumbar radiculopathy. Within the examination report, a typographic error was identified by the Court. Furthermore, the Court refers to the January 2018 decision made by the RO and discusses the concept of ankylosis and its application to different parts of the Rating Schedule. However, it is worth mentioning that the Court does not address the Board's conclusion that Mr. Chavis was not entitled to a higher evaluation under the Incapacitating Episodes Formula. The Court also brings attention to the Note that defines the list of complications associated with ankylosis.

Definition and Application of Ankylosis

Moreover, the Court delves into the definition of ankylosis and its relation to the Rating Schedule. In this context, the Court assumes that the Board's use of "restriction of motion" is synonymous with "limitation of motion." To support the determination of the appropriate evaluation for Intervertebral Disc Syndrome (IVDS), the Court refers to a 1997 opinion from the VA's Office of General Counsel, which highlights the applicability of sections 4.40 and 4.45. The Court acknowledges that the Rating Schedule generally offers higher evaluations for joint ankylosis compared to joint limitation of motion. Additionally, Mr. Chavis raises concerns about the reliability of the February 2017 examination report. However, the Court does not address the question of whether issues related to higher evaluations for radiculopathy are always part of claims seeking higher evaluations for the underlying spine disability.

Reliability of Examination Reports and Additional Concerns

Furthermore, the Court references the M21-1, which provides instructions to adjudicators not to provide separate evaluations for associated neurologic manifestations. Lastly, the Court discusses the Veterans Appeals Improvement and Modernization Act of 2017. Shifting focus to the Board's jurisdiction over the matter of radiculopathy, it is evident that the Secretary adopts three different positions regarding the appropriate remedy for radiculopathy. Initially, the Secretary argues for remand, then contends that the Board lacked jurisdiction, and finally, asserts that the Board's award of a 20% rating is null and void.
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