Joe Whitcomb
Pyramiding Benefits
Estevez is appealing a decision by the Board of Veterans' Appeals that denied him certain disability evaluations.. The Court of Appeals for Veterans Claims affirmed the Board's decision regarding Estevez's right shoulder disability. The Court set aside the Board's decision regarding Estevez's left knee disability and lichen planus, and remanded those matters for readjudication. Estevez filed a claim for increased evaluations in April 2010 He was awarded 20% evaluations for right shoulder and left knee disabilities, and a 10% evaluation for lichen planus.
Estevez complained of pain and limited range of motion in his left knee, as well as flare-ups that were precipitated by movement. For his right shoulder, Estevez reported weakness, tenderness, and pain, with decreased range of motion. Estevez also complained of aching pain, severe itching, and a widespread rash due to lichen planus. The Court found that the Board erred in its evaluation of the left knee and lichen planus, and remanded those matters for readjudication. The Board denied Estevez a right shoulder evaluation greater than 20% under DC 5201.
governing law for measuring joint movement
The Board did not consider the October 2019 measurement of internal rotation limited to 55°. The Court discusses the governing law for measuring joint movement. The Board awarded Estevez an increased left knee evaluation of 20%, but no higher, prior to May 2013. The Board denied a lichen planus evaluation greater than 10% under DC 7800 prior to February 8, 2016 The Court references 38 C.F.R. § 4.71, Plate I, which outlines the full range of motion for shoulder flexion, abduction, internal rotation, and external rotation Estevez's right shoulder disability is currently evaluated as 20% disabling under the 2020 version of § 4.71a, DC 5201.
The Court cites the record to show where the Board discussed the evaluation. The Court outlines the limitations of motion for the arm, specifically noting the degrees of motion allowed from the side, midway between the side and shoulder level, and at shoulder level. The Court distinguishes between "major" and "minor" limitations. The court references the amendment of DC 5201, which clarifies the terminology used in the criteria for rating disabilities. The amendment specifically adds ranges of motion for the shoulder. The court references two Federal Register entries, one for the proposed rule and one for the final rule.
The amended regulation now includes the phrase "flexion and/or abduction" as well as corresponding degree measurements Estevez v. McDonough concerns an appeal by Emilio Estevez against a decision by the Board of Veterans' Appeals. The court affirms part of the Board's decision, sets aside other parts, and remands some issues for further consideration. The court references DC 5201, which concerns the limitation of motion of the arm. The court outlines the major, minor, and midway limitations of flexion and/or abduction The court discusses the question of whether shoulder internal rotation may be evaluated under the 2020 version of DC 5201. The court references Bailey v. Wilkie and Petitti v. McDonald, which both address regulatory interpretation.
The court discusses the Board's denial of a right shoulder evaluation greater than 20% Estevez argues that the Board misinterpreted pre-amendment DC 5201. The Secretary disputes Estevez's contention and argues that the amendment to DC 5201 was meant to be a nonsubstantive clarification. The court discusses the differences between the ranges of motion for flexion and abduction versus internal and external rotation Estevez argues that the Secretary's use of "a single set of threshold measurements" reflects his intent to treat all shoulder motions the same. The court argues that this interpretation is untenable given the structure of the DC and its incompatibility with § 4.71.
absurd results is to be avoided
The court references Timex V.I., Inc. v. United States, which invokes the interpretative canon that a "construction that causes absurd results is to be avoided if at all possible". The court argues that pre-amendment DC 5201's evaluation levels were defined in relation to shoulder range of motion away from anatomical position, not from the position that § 4.71 designates as 0° for measuring shoulder rotation. The court argues that Mariano and Yonek do not compel a broader construction The court discusses three DCs relevant to Estevez's left knee disability. The court argues that Estevez's reliance on Mariano and Yonek is misplaced.
The court discusses the importance of avoiding pyramiding under C.F.R. § 4.14. The court references two recent cases, Lyles v. Shulkin and Walleman v. McDonough, which address when it is appropriate to award separate evaluations for knee disabilities. The court argues that pre-amendment DC 5201 was limited to shoulder flexion and abduction. The court affirms the Board's decision regarding Estevez's right shoulder evaluation Estevez argues that the Board erred in denying him a separate evaluation for limitation of extension under DC 5261.
independently supportable knee evaluations
Estevez contends that his pain at rest satisfies DC 5258's pain requirement, leaving his pain on motion unaccounted for. The Secretary responds that "pain is pain" and that the Board's evaluation of Estevez's left knee disability is plausible. The court references Lyles and Walleman, which direct VA to catalog a veteran's manifestations of a service-connected knee disability and assign all independently supportable knee evaluations. The court discusses the goal of the rating schedule, which is to compensate veterans for their level of functional impairment.
The court discusses the rating schedule and how it does not allow for compensating the same manifestation of disability more than once. The court references cases that support this rule, such as Lyles, Brady, and Amberman. The court argues that Estevez's pain at rest and pain on motion are both manifestations of pain, and therefore should not be separately evaluated. However, The court remands the case because the Board did not provide adequate reasoning for denying a higher left knee evaluation. The court discusses the Board's decision to award Estevez a 20% evaluation under DC 5258, which does provide for a 20% evaluation.
The court notes that the Board did not discuss the specific criteria for this evaluation, and that the only mention of DC 5258 is in the paragraph where the Board denies entitlement to a higher evaluation. The court also discusses the Board's failure to make findings of fact as to how pain factored into the veteran's limitation of extension, which frustrates judicial review. The court remands the case for both periods on appeal, in order for the Board to adequately assess whether Estevez has a compensable degree of limitation of extension independent of the pain that is being compensated under DC 5258.
The court discusses the Board's denial of a lichen planus evaluation greater than 10% prior to February 8, 2016. The court notes that the Board did not address potentially favorable record evidence, such as the veteran's statement to a VA dermatologist that The had received steroid shots from a private dermatologist to treat his increased lichen planus symptoms. The court also notes that the Board did not address other record evidence reflecting that topical treatments had been ineffective in the past. The court remands the issue for the Board to address the evidence in order to determine whether Estevez was entitled to a higher evaluation prior to February 8, 2016.
Range of motion and rotation
The court affirms the Board's decision to deny Estevez an evaluation greater than 20% for a right shoulder disability. The court sets aside the Board's decision to deny Estevez an evaluation greater than 20% for a left knee disability and remands the issue for readjudication. The court also sets aside the Board's decision to deny Estevez an evaluation greater than 10% for lichen planus prior to February 8, 2016, and remands the issue for readjudication. The rest of the appeal is dismissed.
The Board granted Estevez an increased 20% evaluation for a left knee disability and service connection for right knee arthritis. The Board denied Estevez an evaluation greater than 60% for lichen planus, which the Secretary did not challenge. The court references a June 2010 VA examination. The court clarifies terminology and definitions used in the document. The court discusses the importance of shoulder rotation in relation to the transverse plane, sagittal plane, and coronal plane.
The court argues that Estevez's internal rotation would need to be limited to one-fourth of the total range of motion to qualify for a 30% evaluation. The court references several cases that may be relevant to the current case. The court discusses the amendment of § 4.118 and the General Rating Formula for the Skin. The court argues that the Board did not make a factual finding regarding Estevez's steroid shots and that the Court is not permitted to do so. The court affirms the Board's decision to deny Estevez a 30% evaluation for his shoulder condition. The court sets aside the Board's decision to deny Estevez a 60% evaluation for his skin condition. The court remands the issue of Estevez's steroid shots to the Board for further consideration.