De Hart v. McDonough — Separately adjudicated radiculopathy does not remain part and parcel of the spine claim for appellate purposes

Mai De Hart appealed a Board decision addressing the ratings assigned for her lumbar spine disability. During the pendency of that long-running legacy appeal, the RO separately adjudicated bilateral lower extremity radiculopathy, granted secondary service connection, and assigned separate ratings and effective dates. The veteran did not file a notice of disagreement with the 2019 radiculopathy decision, but when the spine rating issue returned to the Board, the Board did not discuss whether the right leg radiculopathy effective date was before it.

The Court held that it was not. The majority explained that although VA must identify and compensate neurologic complications when they are raised, once those complications are separately adjudicated and rated, they assume their own adjudicative identity and are governed by the normal rules of appellate status. The Court distinguished Chavis as fact-specific and relied on Grantham and Jarrell for the principle that an NOD directed to an upstream issue does not place later-decided downstream matters into appellate status. The Court also rejected the analogy to TDIU and Bailey, emphasizing that those authorities concern claim construction and initial adjudication, not whether a separately decided issue remains on appeal. The Board therefore did not err by failing to address the radiculopathy effective date as part of the spine appeal.

The dissent argued that the majority effectively overruled Chavis and that the Board should have addressed radiculopathy or at least remanded for the Board to explain its jurisdiction and reasons or bases. The majority nevertheless affirmed the Board on the radiculopathy issue and noted that a CUE motion may remain available to seek an earlier effective date.

A neurological complication of a spine disability must be separately rated when raised, but once VA separately adjudicates that complication and provides notice of appellate rights, the complication is no longer part and parcel of the spine appeal for appellate-status purposes absent a timely NOD as to the separate decision.

Do not assume a pending spine appeal preserves Board review of later-issued radiculopathy ratings or effective dates. If VA separately grants radiculopathy, appeal that decision directly if you want review of the downstream issues.

This decision narrows the practical reach of Chavis and reinforces the distinction between claim construction and appellate status. It matters because it tells advocates when a separate NOD is required for neurologic complications of spine disabilities and prevents reliance on an older spine NOD to reach later-decided radiculopathy issues.

Treating a separately adjudicated radiculopathy issue as still encompassed by the original spine appeal without filing a new NOD.

A veteran appeals the rating for a lumbar spine disability, and while the appeal is pending VA later grants separate service connection for bilateral radiculopathy with its own effective date. If the veteran wants an earlier radiculopathy effective date, the veteran must file an NOD with the radiculopathy decision rather than relying on the original spine appeal.

Use this case to argue against Board jurisdiction over later-decided radiculopathy issues when no separate NOD was filed, and to counsel clients that a new appeal is required after VA issues a separate radiculopathy rating decision.

Grantham v. Brown, Jarrell v. Nicholson, Chavis v. McDonough, Bailey v. Wilkie, Harper v. Wilkie, Holland v. Brown, Urban v. Principi