Chavis: Ankylosis of the Spine and DeLuca

Chavis v. McDonough, Opinion Number 18-2928, was decided April 16, 2021 and involves the definition of ankylosis of the spine.

The veteran was service connected for a low back injury with a 20% rating.  Years later he sought an increased rating and complained of radiating pain in his legs.  The result was an increase to 40% based on limited forward flexion and eventually 10% ratings for each lower extremity due to radiculopathy.

The Board denied a higher rating for the lumbar back noting there was no ankylosis of the spine or IVDS treated by prescribed best rest.  However, the Board increased the radiculopathy ratings to 20% each.

The veteran argued to the Court that functional loss during flare-ups effectively rendered his spine ankylosised.

The Court noted the term ankylosis has been used by the VA since 1919 and the medical meaning is "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure."  Id. at *7.   The Court then found “ankylosis is a diagnosis, it is worth reiterating that VA considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness.”  Id. at *9.

The Court then pivoted to the Deluca factors and noted “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.”  Id. at *10.  It then noted: “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 11 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."”  Id. at *10-11.

As related to the facts of the case at hand, the Court ruled:

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 Mr. Chavis's lumbar spine disability. Accordingly, the Court concludes that remand of the lumbar spine claim is warranted for readjudication.

Id. at *13-14.

As to the radicular rating, the veteran argued 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 the Rating Schedule—renders its decision arbitrary and capricious.”  Id. at *14-15.  This led to an unusual discussion about the Court’s jurisdiction of the radiculopathy issue as the veteran never filed a NOD as to that issue.

The Court concluded:

“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.”

Id. at *16.   As to the merits of the argument, the Court agrees with the veteran and stated: “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.”  Id. at *19.

Judge Meredith concurred in part but wrote separately to argue that the Board and Court did not have jurisdiction over the issue of the bilateral radiculopathy rating.  She argued

This case is very helpful in both opening the door to higher back ratings based on DeLuca Factors.  The goal would be to argue they are so extreme as to result in ankylosis.  It also provides some support to argue radiculopathy is always contained or reasonably raised by lumbar disabilities.

Opinion by Chief Judge Bartley and joined in by Judge Falvey.  A concurrence was written by Judge Meredith.

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