De Hart: Scope of An NOD in a Radiculopathy Case and a Reframing of Chavis

De Hart v. McDonough, Case Number 21-6247, decided July 23, 2024 is a decision by the Veterans Court regarding an earlier effective date for radiculopathy.

The claim began related to a noncompensable rating for the veteran spine, during the claim the RO granted a higher rating for the spine and also granted service connection for bilateral lower extremity radiculopathy in a 2019 decision.  The veteran did not file a NOD as to that decision, but the spine rating issue returned to the Board resulting in the Board decision on appeal.

The Board decision noted the grant of service connection for radiculopathy but did not otherwise discuss the award or effective date.  The veteran sought an earlier effective date from the Court and argued “that the issue of an earlier effective date for her right leg radiculopathy was before the Board in 2021 by virtue of the 2009 NOD because, as a neurological complication, radiculopathy must always be considered part and parcel of her spine condition.”  Id. at *1-2.

The Court disagreed and determined: “that once radiculopathy is recognized by VA as a distinct service-connected disability with its own rating criteria, it is subject to the same general rules that would govern the appeal of any other separately adjudicated issue. To that end, we hold that, although neurological complications secondary to a spine condition claim must be considered and properly compensated by VA when they are raised by a veteran or reasonably raised by the record, they do not as a legal matter remain part and parcel of the spine claim once they have been separately addressed and adjudicated in a VA decision. And because the veteran did not file an NOD as to the effective date for right leg radiculopathy assigned by the RO in its 2019 decision, the issue was not before the Board in June 2021, and the Board had no obligation to address it. This result follows naturally from our caselaw, which regards "downstream" issues that have yet to be decided as beyond the scope of an NOD that appeals an "upstream" issue.”  Id. at *2.

Judge Jaquith wrote a powerful and pointed dissent.  He argued the opinion violated the holding found in Chavis v. McDonough, 34 Vet.App. 1 (2021) and the only way to overrule Chavis was an en banc court’s decision.  Id. at *14.  He assailed the majority’s decision to characterize Chavis as factbound, noting its argument really just echoed the dissent in Chavis.  He then asserted: “The circumstances in this case are not meaningfully different from those in Chavis. Though it is true that the Chavismajority 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," 34 Vet.App. at 15 n. 17, that footnote does not render the Chavis opinion nonprecedential and is not a license to reverse it in the nearly identical circumstances here. And that is what is happening. Under the guise of addressing an unanswered question, the majority opinion is nullifying the Chavis holding and elevating the Chavis dissent. If that flip-flop is warranted, it must be accomplished by the en banc Court.”  Id. at *15.

I would expect to see a motion to reconsider and find Judge Jaquith's dissent a powerful indictment against a decision that seems to simply change the result of a precedential decision. 

Decision by Judge Toth and joined in by Judge Pietsch.  Dissent by Judge Jaquith. 

 To know more about whether Thomas Andrews can help you, please visit my website.