Court Vacates Part of VA Decision on Veteran's Back Disability Rating

In Taylor v. Collins, Army veteran Deon S. Taylor appealed a decision of the Board of Veterans’ Appeals denying higher disability ratings for his service-connected back condition. 

Deon S. Taylor served in the United States Army from 1991 to 1994, including a deployment to Somalia in 1993. He sustained a back injury during training exercises. In 2009, the Department of Veterans Affairs granted service connection for his back disability and assigned a 10 percent rating effective from the date of his 2007 claim. Taylor continued to pursue a higher rating.

Throughout the appeal process, the Board remanded the matter multiple times to obtain adequate medical opinions addressing the severity of Taylor’s lumbar spine disability. The dispute centered on whether his pain and flareups caused additional functional loss beyond his baseline range-of-motion measurements.

Prior Remands and Medical Opinions

In 2021, the parties filed a joint motion for remand. They agreed that earlier medical examinations from August 2008, May 2012, September 2015, September 2016, and October 2017 did not adequately address how Taylor’s pain and flareups affected his functioning. The Court granted that motion.

Following the remand, the VA obtained retrospective medical opinions in March 2022, November 2022, and August 2023. The Board determined that each of those opinions failed to account for Taylor’s reported pain and functional loss. The Board then ordered another retrospective opinion and instructed the examiner to estimate additional functional impairment during repeated use over time and flareups. The Board directed the examiner to consider Taylor’s lay descriptions and to discuss whether his disability resulted in functional impairment equivalent to ankylosis.

The Board specifically referenced an October 2013 VA treatment record indicating that Taylor’s flexion, extension, and rotation were decreased by 100 percent and side-bending was decreased by 75 percent on the left and 50 percent on the right due to lower back pain. The examiner was instructed to provide a rationale supported by discussion of medical principles and the facts of the case.

In April 2024, a new examiner issued an opinion addressing two periods: before May 2012 and from May 2012 to February 2018.

Period Before May 2012

For the period before May 2012, the April 2024 examiner relied on range-of-motion measurements from the August 2008 and May 2012 examinations. The examiner stated that there was no reason to conclude that Taylor experienced greater loss of motion due to pain during that time.

The Board relied on the April 2024 retrospective opinion and denied a rating higher than 10 percent for the period before May 2012.

On appeal, both parties agreed that remand was required again for this period. In the earlier joint motion for remand, the parties had agreed that the 2008 and 2012 examinations were inadequate because they failed to comply with case law requiring consideration of flareups and functional impairment. The April 2024 examiner based her opinion on those same measurements and stated that there was no evidence of flareups in the record, despite lay reports of flareups appearing in the record, including reports during the August 2008 examination, February 2012 hearing testimony, and the May 2012 examination.

The Court determined that because the April 2024 opinion relied on examinations previously found inadequate, the Board lacked sufficient information to determine whether Taylor’s pain or flareups caused enough functional loss to warrant a higher evaluation. The Court vacated the portion of the Board’s decision denying a higher rating before May 7, 2012, and remanded the matter for further development. The Court noted that on remand Taylor could submit additional evidence and argument and that the Agency was required to treat the remanded claim expeditiously.

Period from May 7, 2012, to February 4, 2018

For the period between May 7, 2012, and February 4, 2018, the Board denied a rating higher than 20 percent. A 40 percent rating required forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Court explained that favorable ankylosis refers to stiffening or fixation of a joint in a neutral position and that a veteran may qualify for a higher rating if functional loss is equivalent to ankylosis.

The April 2024 examiner reviewed 19 records addressing Taylor’s pain and limited movement. The examiner discussed the October 2013 chiropractic note that estimated 100 percent reduction in flexion, extension, and rotation, and partial reductions in side bending. The examiner also summarized records reflecting chronic low back pain, limited bending and standing, need for assistance with dressing, and significant pain flareups.

Despite acknowledging those reports, the examiner concluded that no functional ankylosis of the spine was present between 2012 and 2017. She explained that the chiropractic measurements were not consistent with standard range-of-motion examination practices and did not represent ankylosis.

Taylor maintained that the examiner failed to adequately address his lay reports of inability to flex, extend, rotate, exercise, independently wash or dress, and walk after 15 minutes. The Court reviewed whether the Board clearly erred in relying on the April 2024 opinion.

The Court determined that a holistic reading of the examiner’s opinion demonstrated that she adequately considered Taylor’s reported functional loss. The examiner summarized his medical history and lay statements and then provided an opinion that no functional ankylosis existed during the relevant period. The Court concluded that examiners are required to provide an essential rationale, not to discuss every piece of evidence individually.

The Court found that the April 2024 opinion informed the Board’s understanding of Taylor’s disability picture for the period from May 2012 to February 2018. It concluded that the Board did not clearly err in relying on that opinion and in determining that the evidence did not demonstrate limitation of motion to 30 degrees or less or functional ankylosis.

Court’s Final Decision

The Court vacated the portion of the Board’s July 24, 2024, decision that denied a higher rating before May 7, 2012, and remanded that matter for further development. The Court affirmed the portion of the Board’s decision denying a rating higher than 20 percent for the period from May 7, 2012, to February 4, 2018. The remainder of the appeal was dismissed.

Veterans Disability Legal Services

If you are seeking VA disability benefits or appealing a denied or underrated claim, Whitcomb, Selinsky PC represents veterans in claims for service-connected disability compensation and appeals before the Department of Veterans Affairs. Contact us to discuss your claim with our team.