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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-7499
WILLIAM G. FENNELL, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, William G. Fennell, appeals through counsel an
October 8, 2020, Board of Veterans’ Appeals (Board) decision in which the Board denied an
increased disability rating for bilateral hearing loss, and denied service connection for a prostate
disability, a left knee disability, a kidney disability, and left ear skin cancer. Record (R.) at 5-20.1
This appeal is timely and single-judge disposition is appropriate when, as here, the issues
are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision
denying an increased rating for bilateral hearing loss, and denying service connection for a prostate
disability, a left knee disability, a kidney disability, and left ear cancer, and remand the matters for
further proceedings consistent with this decision.
I. BACKGROUND
Mr. Fennell served on active duty in the U.S. Army from July 1968 to March 1970. R. at
He filed compensation claims for a kidney disability and hearing loss, R. at 3010, for left
1 The Board also remanded the matter of service connection for an acquired psychiatric disability. The
remanded matter is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004); see also Howard v.
Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
2
ear skin cancer, R. at 2796, for
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Single Judge Application; migraine; Holmes v. Wilkie, 33 Vet.App. 67, 73 (2020) (explaining that the word “migraine” contemplates a range of symptoms beyond headaches);
November 6, 2021
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Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;
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Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”);
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Privacy Act of 1974; System of Records
November 6, 2021
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