Cullen: DeLuca Applied

Cullen: DeLuca Applied

The decision in Gerald Cullen v. Eric K. Shinkseki, Opinion Number 08-1193, decided August 13, 2010, is an excellent illustration of how the Board of Veteran Appeals can error in applying the DeLuca factors.

DeLuca v. Brown, 8 Vet. App. 202 requires the VA in musculoskeletal disabilities to take into account limitation of motion resulting from pain or functional loss. In this case, the veteran was previously service connected for residuals of a shrapnel wound to the shoulder and degenerative joint disease of the thoracic spine and was seeking a ratings increase. In the C&P examination, the physician noted for both the shoulder (effected by shrapnel) and the spine, limitations based on pain, fatigue, weakness, and lack of endurance following repetitive use and during flare-ups. However, the Board determined an increase was not called for because while it considered DeLuca, the effects of the pain are contemplated in the assigned ratings and any “additional limitation as reported by the VA examiner the veteran’s disability picture more clearly approximated the criteria required for the 20 percent rating (forward flexion limited to between 30 and 60 degrees).”

The Court found the Board’s discussion of the effects of pain, weakness, or fatigue to be conclusory and without a supporting rationale. Id. at *14. Regarding the spinal rating, the Court found the physicians statement was problematic because the statement is not helpful to the Board in reaching a conclusion because it lacks any specifics regarding the effects of the additional limitation of range of motion and that the Board’s failure to explain its conclusion any more thoroughly than the VA examiner was error. Id. at *15. Regarding the shrapnel wound to the shoulder, the Court found the Board’s statement that the additional functional limitation of more nearly approximates a moderately severe disability is conclusory and unsupported by a further explanation and the Board did not address the fact the VA examination found the veteran’s flexion was limited to 60 degrees which would support his assertion that his disability limits his range of motion to midway between his side and his shoulder and therefore entitles him to a 30 percent rating. Id. at *16.

Thus, we can see that usually a DeLuca challenge is most powerful when couched as a failure to give adequate reasons or bases for denying the increased rating (i.e., it did not properly address the DeLuca factors.

Additionally, the veteran sought to make a technical argument that he was entitled to more than one rating for his back because the schedule found in 38 C.F.R. § 4.71a was written in the disjunctive rather than the conjunctive. Essentially he was arguing that he was entitled to both a 20% and a 40% disability rating for his thoracic spine condition because he fulfilled the conditions for both. The Court rejected what it admitted as a creative argument and held that within a particular diagnostic code, a claimant is only entitled to one disability rating for a single disability unless the regulation expressly provides otherwise. Id. at *13.

Decided by Judges Hagel, Moorman, and Davis.