Estevez: Shoulder Rotation Ratings Explained

Estevez v. McDonough, Case Number 20-8637, decided May 19, 2023 addressed shoulder rotation ratings under the pre-amendment version of Diagnostic Code 5201 (limitation of motion of the arm). 

The Board denied entitlement to a shoulder rating greater than 20% under then DC 5201 because ROM from 2010 and 2019 revealed limited abduction at 90 degrees.  “The Board acknowledged that Mr. Estevez's right shoulder disability caused additional functional loss due to pain and an inability to carry heavy objects, but it concluded that a higher evaluation was not warranted because, even factoring in that additional functional loss, his level of disability did not more nearly approximate arm motion limited to midway between the side and shoulder level.”  Id. at *4.

DC 5210 was amended effective February 2021 to clarify the terminology related to the shoulder.  The veteran argued the Board, in focusing solely on limitation of abduction, misinterpreted pre-amendment DC 5201 to exclude his limited shoulder internal rotation.  The Court noted “The veteran's argument is based on simple math. In his view, a 30% evaluation under preamendment DC 5201 required limitation midway between side and shoulder level, which he calculates as 45°, and a 20% evaluation required limitation at shoulder level, which he calculates as 90°. He reasons that, because the 2020 version of DC 5201 did not specify any particular type of limited arm motion, the October 2019 VA examiner's finding of internal rotation limited to 55° more nearly approximates the criteria for a 30% evaluation because 55° is numerically closer to 45° than to 90°.”  Id. at *7.

The Court noted that Section 4.71 “identifies different starting points for measuring shoulder flexion and abduction (from anatomical position as 0°) and for shoulder internal and external rotation (from the position of the "arm abducted to 90°, elbow flexed to 90° with the position of the forearm reflecting the midpoint 0° between internal and external rotation of the shoulder" as 0°). For shoulder flexion and abduction, Plate I depicts movements away from the side of the body in the sagittal and coronal planes, respectively, whereas for shoulder rotation, it depicts movements in the transverse plane around a different axis. 38 C.F.R. § 4.71, Plate I.  7 Plate I also specifies different numeric ranges of motion for shoulder flexion and abduction (0° to 180°) and internal and external rotation (0° to 90°). Id. These differences are fatal to Mr. Estevez's proposed interpretation because only the method for measuring shoulder flexion and abduction comports with the pre-amendment evaluation criteria.”  Id. at *9. 

The Court concluded: “In short, although pre-amendment DC 5201 did not specify that it applied only to certain types of arm motions, the language and structure of the DC indicates that it was, in fact, limited to shoulder flexion and abduction. Given that Mr. Estevez argues only that the Board committed reversible error in not awarding a higher right shoulder evaluation under that DC based on his limited shoulder internal rotation, and given that he did not argue that the Board committed any other error in evaluating that disability, the Court will affirm that portion of the Board decision.”  Id. at *12.

The Court also considered a knee and lichen planus issue that resulted in remand and are of lesser importance.

This veteran made a good argument for a higher shoulder rating that was simply not accepted by the Court based on the totality of the diagnostic code.

Decision by Chief Judge Bartley and joined by Judges Pietsch and Laurer.

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Encarnacion Continued: RO Decisions Implementing A Board Decision Cannot be Appealed and The Board Cannot Unilaterally Wrest Jurisdiction from the Court

Encarnacion v. McDonough, Case Number 21-1411, decided January 30, 2023 involved whether a RO decision implementing a Board decision could be appealed.  The VA asked for reconsideration by the Court, which was granted and a new decision (substantively similar to the first) was rendered on May 18, 2023.

Shortly after the veteran died, the surviving spouse filed for DIC and accrued benefits.  Ultimately the Board granted a 10% rating with a specified effective date for a right knee condition.  The RO then implemented the Board’s decision in another decision.  The surviving spouse filed an NOD as to the AOJ’s implementation with regard to the amount of the rating.  The VA then issued both a SOC and sent a letter rejecting the NOD.  The surviving spouse filed a Form 9 and the SOC was certified to the Board, which issued another decision as to the rating issue.  She appealed that decision to the Court and won a JMR because the Board erred in addressing the merits before determining whether the AOJ properly found it could not accept the NOD.

On remand, the Board determined it lacked jurisdiction because the spouse may not challenge the merits of a Board decision by expressing disagreement with the AOJ’s implementation of it.  The Board determined the law prohibits a NOD with respect to this type of implementation. 

The Court determined: “the pure implementation of a Board adjudication cannot be regarded as a decision "affect[ing] the provision of benefits" under section 511(a) and so cannot be appealed to the Board.”  Id. at *5.  It noted: “Here, the implementation of the Board decision by the AOJ was accompanied by no new findings of fact or law that could affect the award of disability benefits.  The Board had already granted service connection and resolved the proper rating and effective date. Even more importantly, the AOJ couldn't render new findings on factual or legal issues already determined by the Board because that would place the AOJ in the untenable position of reviewing the decision of a superior tribunal on those matters.  In sum, the AOJ's purely ministerial implementation of the Board's judgment was not a "decision" of the Secretary and thus could not be appealed through the filing of an NOD.”  Id. at *5-6.

The surviving spouse tried to argue the VA waived any objection to jurisdictional defect because the VA continued to adjudicate the claim by issuing a SOC and certifying to the Board.  But, the Court found without a decision under Section 511, there is simply nothing to review.  Id. at *6. 

However, the Court did find she was not without recourse.  It found the Board was required to determine whether her written disagreement with the decision (purported NOD) was a motion to reconsider the Board’s decision.  It also noted it was submitted within 120 days, which would abate the finality of the time to appeal to the Court.

On the motion to reconsider, the Secretary argued the Board had already considered the 2018 NOD as a request to reconsider and the Court had no jurisdiction over the 2018 decision.

“The Court grant[ed] reconsideration and agree[d], at least in one aspect, with the Secretary. We thus rescind the vacatur of the May 2018 Board decision. The Court declines, however, to alter its analysis regarding vacatur of the June 2020 Board decision or the Agency's duty to consider whether Ms. Encarnacion's July 2018 NOD constitutes a motion to reconsider the May 2018 Board decision. Once an issue has been properly presented to the Court for resolution, the Board may not wrest the issue from our consideration.”   Id. at *2.

While the case was pending before the Court, the Board tried to wrest jurisdiction from the Court by issuing a decision considering the July 2018 NOD as a request for reconsideration of the May 2018 Board decision.  The Secretary argued there is no need for the Court to order the Board to do something it has already done.  The Court rejected this argument, saying “But this misunderstands the situation: the Court's task on appeal was to determine whether the Board committed error in the June 2020 decision, and we determined that it did by failing to address the Ratliff issue. That was the appropriate time for the Board to consider the matter—not in October 2022, more than a year and a half after Ms. Encarnacion filed her Notice of Appeal here and more than two weeks after our order notified the parties that we were considering whether the July 2018 NOD should be construed as a motion for Board Chairman reconsideration.”  Id. at *7.

The Court explained and admonished the Secretary that,

“The Board's unilateral action ignored our admonition in Cerullo v. Derwinski, 1 Vet.App. 195, 197 (1991), that "[o]nce an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same issues." Not only is the concept of "concurrent or dual plenary jurisdiction . . . impermissible," we explained, but "allowance of dual jurisdiction raises the possibility that a court of appeals will expend extensive judicial time on a case only to have agency reconsideration nullify its efforts." Id. In this case, we ordered the Board on October 21 not to take action on any issue pending before the Court unless it was first granted leave to do so per the procedures spelled out in Cerullo. The Secretary declined to seek such leave on the Board's behalf. Given Cerullo and this Court's order, it should have been clear that the Board's belated attempt to dispose of the Ratliff issue while the Court was actively considering the matter was of no legal consequence. Regardless of what the Board purported, it could not construe the July 2018 NOD as a request for reconsideration of the May 2018 Board decision until the Court addressed the issue, over which we had taken jurisdiction. The Court having determined that Ratliff applied in these circumstances and that the June 2020 decision must be vacated, the Board is now permitted to construe the NOD as a motion for Board Chairman reconsideration.

This disposition clarifies not only juridical matters but practical ones. Action taken by the Secretary on an issue that is pending before this Court risks confusion as to governing procedures and deadlines. For example, the timing of a decision by the Chairman as to whether to grant or deny reconsideration directly impacts the timeframe within which a VA claimant can appeal a Board decision to this Court. In Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991), we established that, unless a protective Notice of Appeal has been filed in this Court, VA must "advise the claimant of the new 120-day judicial appeal period that commences, as to the underlying substantive [Board] decision, on the date of the mailing of the [Board's] notice of denial of the motion for reconsideration." Claimants, especially those who lack the assistance of capable counsel, could easily lose track of what they must do to pursue their cases properly when a claim or issue is being adjudicated simultaneously by two different tribunals.”

Id. at *8.

Judge Jaquith wrote a concurrence in which he focused on the tortured procedural history of this case and in particular how the VA seems to have not handled the substitution properly and without proper notice.  It is a well-reasoned discussion that sympathetically focuses on the veteran or surviving spouse.  He particularly called out the Secretary, saying “VA has flouted the authority of the Board and this Court, and our dissenting colleague says we are powerless to address the Agency's defiance. In my view, a contrary conclusion is dictated by our status and function as a court created to provide independent judicial review of decisions in a system founded on fair process.”  Id. at *9-10.

Judge Falvey wrote a dissent in part.  He agreed that the a RO decision simply implementing a Board decision could not be appealed, but disagreed with everything else.  He essentially argued that the remand simply added steps and time to the surviving spouse’s appeal. 

This is an odd case with a twisted procedural history that no doubt confused an older, unrepresented surviving spouse.  However, the Courts definition of a decision as one not requiring any further adjudication by the AOJ is a helpful clarification.  The Court’s willingness to directly say the Board should have considered the second NOD as a motion for reconsideration and then going a step further and saying the VA cannot unilaterally wrest control of the appeal from the Board by later addressing the motion is also very helpful and demonstrates that at least some of the judges are tired of the VA’s unceasing games.

Decision by Judge Toth.  Concurrence by J. Jaquith and dissent in part by J. Falvey.

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Cook: What Evidence is Considered by the Board

Cook v. McDonough, Case Number 20-6853, decided May 17, 2023 involves what evidence the Board should consider on appeal  Specifically, the case involved evidence submitted after an RO decision, but before the NOD was submitted. 

The veteran argued 38 USC 7113(c)(2)(A) plainly and unambiguously provides that the Board must consider all evidence associated with the VA claims file when the NOD is filed.  The Court noted the veteran is asking it to interpret the phrase “evidence submitted with the NOD” as including all evidence in the VA claims file when the NOD is filed.  The Court rejected such an interpretation.  Essentially it argued the plain meaning of the statute does not support such an interpretation.

The veteran also argued that the Board decision did not provide a general statement complying with Section 7104(d)(2).  Essentially, he argued he Board incorrectly stated that the evidence it did not consider was received after the 90th day following the NOD, and that the Board failed to inform the veteran that it did not consider evidence received before the NOD.

Next, the Court explained

“Congress understood that for the Board's reasons or bases to be adequate, the Board must "account for the evidence which it finds to be persuasive or unpersuasive" and its decision "must contain clear analysis and succinct but complete explanations." Id. at 57. Thus, to render an adequate statement of reasons or bases, the Board must consider evidence and explain its weighing of the probative value of evidence. By comparison, subsection 7104(d)(2)(A) requires something different: a general statement "reflecting whether evidence was not considered in making the decision because the evidence was

received at a time when not permitted under [38 U.S.C. § 7113]." 38 U.S.C. § 7104(d)(2)(A). Thus, to provide a general statement, the Board must consider whether any evidence in the record in the proceeding falls outside the "evidentiary record before the Board" under section 7113. Unlike subsection 7104(d)(1), no language in subsection 7104(d)(2) suggests that the Board must actually consider any evidence or explain the probative value of any evidence.”

Id. at *12-13.

It then explained:

“For a claimant to make an informed decision on whether and how to have VA consider any evidence not considered by the Board, the Board must accurately inform the claimant whether it did not consider evidence because it was received during a time not permitted by section 7113, and what options may be available for having VA consider that evidence. Congress obviously intended to require the Board to include, in its decision, a general statement that accurately informs the claimant of that information, because a general statement inaccurately informing the claimant of that information would render subsection 7104(d)(2) ineffective.”

Id. at *13-14.

As to this case, “[t]he parties do not dispute that the Board did not consider evidence submitted during the time period between the AOJ decision and the NOD, and Board erred because it provided, in its decision, a misleadingly inaccurate general statement informing Mr. Cook that it did not consider only evidence received after the 90 days following NOD.  We also conclude that the Board's error prejudiced Mr. Cook.”

Id. at *15.

Judge Jaquith wrote a concurrence outlining notice deficiencies in the entire process.  He wrote:

“Notice and a meaningful opportunity to respond are key requirements of due process and the fair process principles at the heart of our system. The notice the AOJ and the Board provided here was inadequate, first giving the veteran no reason to think that the early evidence he submitted in response to the AOJ's notice would not be considered unless it was resubmitted and then giving him an inaccurate and misleading general statement regarding the evidence the Board had not considered. VA's handling of this case did not measure up to the expectation of Congress.”

Id. at *21.

This decision illustrates the insanity of a system that allows the Board to ignore evidence because it was not submitted WITH the NOD and was instead submitted prior to the NOD.  This is a major failing of the new legislation that only injects more delay into a VA process already filled with delay.

Decision by Judge Pietsch and Laurer with concurrence by Judge Jaquith. 

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Wiker: Lack of Notice Means a Decision Remains Open

Wiker v. McDonough, Case Number 21-5454, decided May12, 2023 involves a VA denial where the notice did not state the claim was denied.

This was an appeal from an earlier effective date denial for left eye blindness.  The veteran argued the Board erred in finding the VA fulfilled its duty to notify the veteran of a 1965 decision denying service connection for cataracts and thus the decision was not final.  The Court held

“that VA failed to give Mr. Wiker proper notice because the January 1965 initial notice didn't tell him that VA denied service connection for cataracts. As for the actual knowledge exception, although we hold that it can apply in this context, we find that the evidence relied on by the Board fails to show that Mr. Wiker knew that he could appeal VA's October 1965 corrective notice or that he knew his deadline to file such an appeal. And as for the reasonable person exception, even if we assume that it could apply here, the differences between VA's initial notice and the corrective notice would not let a reasonable person know that the denial could be appealed or what the time limit was for doing so. Thus, we hold that Mr. Wiker's appeal never became final, reverse the Board's contrary determinations, and remand this claim for the Board to consider the correct effective date based on the 1964 claim.”

Id. at *2.

The veteran was discharged for bilateral cataracts and immediately sought service connection, which was denied because the RO found it was a congenital defect.  However, the VA never sent the decision to the veteran.

However, the VA did send a letter saying service connection was granted but rated noncompensable.  Several months later, the VA sent a letter saying the prior letter was error and service connection had been denied previously.  That letter stated nothing about appellate rights.

The Board admitted the first letter was confusing, but found it was cured by the second letter.  After a court remand, the Board again found the first letter was not sent to the veteran, but cured by either the second letter or the veteran’s actual knowledge of the denial and appellate rights.

The Court began by noting a claim remains open until finally adjudicated, but final adjudication requires proper notification of the decision.  Id. at *4.  Part of the notice required in 1965 was (1) the reason for the decision, (2) the claimant's right to appeal by filing an NOD, and (3) the time limit within which an NOD could be filed.  The Court found the first letter failed by not stating he had been denied service connection and why.  Id. at *6.

The Court considered whether the veteran had actual knowledge of the denial, but found the evidence did not show he had actual knowledge prior to the time to appeal elapsing. 

This is an interesting decision showing that it is not impossible to find apparently final decisions that in fact remain unadjudicated.

Decision by Judge Falvey and joined by Judges Allen and Jaquith. 

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