Veteranclaims’s Blog

November 23, 2010

Entitlement to Referral for Consideration of an Extraschedular Rating

Although this is a single judge decision it put forth very nicely the three-step inquiry that the VA must undertake when considering an extraschedular rating

From the case below:

“The Court notes that the Board’s analysis of whether Mr. Cooper was entitled to referral for consideration of an extraschedular rating (see R. at 15) appears to conflate the first and second steps of that analysis set forth by this Court in Thun v. Peake. 22 Vet.App. 111, 115-16 (2008). Thun holds that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry: First, the Board must determine whether the “evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected
disability are inadequate;” second, if so, the adjudicator must “determine whether the claimant’s exceptional disability
picture exhibits other related factors,” such as marked interference with employment or frequent periods of hospitalization; third, if the first two steps have been satisfied, the adjudicator must refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. However, Mr. Cooper, who is represented by counsel, asserts only that the question of referral for
extraschedular consideration is inextricably intertwined with the question of entitlement to a total disability based on individual unemployability; therefore, the Court will not further address
the Board’s analysis of extraschedular consideration.

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U.S. Court of Appeals for Veterans Claims
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Title:

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-2862
LORENZO D. COOPER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Lorenzo D. Cooper appeals through counsel a June 1, 2007,
Board of
Veterans’ Appeals (Board) decision granting entitlement to an increased
disability rating of 60% for
dermatophytosis1
after August 30, 2002, but denying an increased rating prior to that date,
and
finding that new and material evidence had not been submitted to reopen a
previously disallowed
claim for a left ankle disorder. Record (R.) at 1-15. The Board remanded
the question of entitlement
to a total disability rating based on individual unemployability for
further development, including
a medical examination, and that matter is not before the Court at this
time. See 38 U.S.C. § 7266
(stating that the Court reviews only final decisions of the Board); Howard
v. Gober, 220 F.3d 1341,
1344 (Fed. Cir. 2000) (Board remand does not constitute a final decision
that may be appealed). In
his brief, Mr. Cooper argues only that the Board erred in not remanding
the question of entitlement
to an extraschedular rating, which he contends is inextricably intertwined
with the question of
entitlement to a total disability rating based on individual
unemployability. Accordingly, the Court
Dermatophytosis is “any superficial fungal infection caused by a
dermatophyte and involving the stratum
corneum of the skin, hair, and nails; this includes onychomycosis and
various forms of Previous DocumenttineaNext Hit.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 505 (31st ed. 2007) [hereinafter DORLAND’S].
Onychomycosis is “Previous HittineaNext Hit involving the nails, often
from spread of Previous HittineaNext Hit Previous HitpedisNext Hit or Previous HittineaNext Document manuum, but occasionally from
infection with bacteria or other fungi.” Id. at 1342,
1955-56.
1

deems all other arguments abandoned. See Grivois v. Brown, 6 Vet.App. 136,
138 (1994) (holding
that issues or claims not argued on appeal are considered abandoned). The
Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the June 2007
Board decision, and a single
judge may conduct that review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-
26 (1990). Because
the Board’s decision is not clearly erroneous, the Court will affirm June
1, 2007, Board decision.
I. FACTS
Mr. Cooper served on active duty in the U.S. Navy from June 1981 to June
1985. In March
1987, a VA regional office granted service connection for dermatophytosis
and awarded a
noncompensable disability rating. Mr. Cooper did not appeal that decision
and it became final.
In September 1994, Mr. Cooper requested that his claim for a skin
condition be reopened
because he felt that dermatophytosis was “not trulyrepresentative”
ofthecondition he suffered from.
R. at 252. He asserted that he suffered from “hypersensitivity to
chemicals commonly used in
aviation,” and reported that he was unable to work around chemicals and
that exposure to chemicals
aggravated his condition. Id. In March 1995, after undergoing a VA
examination, Mr. Cooper’s
request for an increased disability rating was denied by the regional
office. In September1996, a
hearing officer increased the disability rating for Mr. Cooper’s skin
condition to 10%.
At a November 1997 regional office hearing, Mr. Cooper testified that he
had begun
receiving Social Security benefits in August of that year.
VA obtained Social Security
Administration records reflecting that Mr. Cooper became eligible for
disability benefits in May
1993 as a result of “chronic physical disorders of the skin” as well as ”
chronic mental disorders
diagnosed as depression, and anxiety[-]related and personality disorders,
which are considered to be
‘severe’.” R. at 559.
In a January 1998 hearing officer decision, VA increased Mr. Cooper’s
disability rating for
his “service[-]connected skin condition” to 30%, effective September 28,
1994, the date of his claim
for an increased disabilityrating. R. at 530-32. Mr. Cooper appealed that
decision, arguing that both
the disability rating and effective date assigned were incorrect and
seeking a 100% disability rating
effective December 1986, the date of his initial claim for benefits for a
skin condition. In November
2

1999, the regional office continued the 30% disability rating assigned
for Mr. Cooper’s skin
condition. Mr. Cooper appealed that decision.
In March 1999, Mr. Cooper asserted entitlement to a total disability
rating based on
individual unemployability, stating that he had worked less than two years
out of the prior 14 years
and that he had last worked full-time in November 1987. In an April 1999
decision, the regional
office determined that Mr. Cooper was not entitled to a total disability
rating based on individual
unemployability. In November1999,Mr.
Coopersubmittedadditionalevidenceofunemployability,
which VA construed as a Notice of Disagreement with the regional office
decision.
In June 2001, after denying entitlement to an earlier effective date for
Mr. Cooper’s skin
condition, the Board remanded the question of an increased disability
rating for that condition for
a new medical examination. The Board also remanded the question of
entitlement to a total
disability rating based on individual unemployability for the regional
office to issue a Statement of
the Case.
After several years of additional development, in June 2007 the Board
issued the decision
on appeal denying entitlement to an increased disability rating for a skin
condition prior to August
30, 2002; granting an increased disabilityrating of 60% for that condition
after August 30, 2002; and
remanding the question of entitlement to a total disability rating based
on individual
unemployability. Pertinent to the issue on appeal, after reviewing the
relevant criteria under former
and current rating schedules for skin disorders and determining that Mr.
Cooper was entitled to a
60% disability rating for his skin condition as of August 30, 2002 (the
effective date of the new
criteria), the Board turned to the question of consideration of an
extraschedular rating. The Board
determined that “the schedular evaluation in this case is not inadequate”
and that “[t]here is no
evidence of an exceptional disability picture as [Mr. Cooper] has not
required hospitalization due
to dermatophytosis.” R. at 15. The Board therefore found that the regional
office “did not err by
failing to consider or failing to document its consideration” of
entitlement to an extraschedular
rating. Id. Regarding entitlement to a total disability rating based on
individual unemployability,
the Board determined that there was no medical opinion of record
documenting the effect of Mr.
Cooper’s service-connected disabilities on his abilityto work, and the
Board thereforeremanded that
3

matter to the regional office with instructions to provide a medical
examination and readjudicate the
matter.
On appeal, Mr. Cooper argues only that the Board erred in finding that
referral for
extraschedular consideration was not warranted because that issue is
inextricably intertwined with
the question of entitlement to a total disability rating based on
individual unemployability.
Specifically, he contends that “[t]he issue of the impact of [his] service-
connected disabilities on his
employability for the purposes of adjudicating his [entitlement to a total
disability rating based on
individual unemployability] is essentially the same issue as whether those
disabilities markedly
interfere with his employment under [38 C.F.R.] § 3.321(b)(1).”2
Appellant’s Br. at 7.
In response, the Secretary argues that Mr. Cooper’s argument has been
directly addressed by
this Court in Gurley v. Nicholson, 20 Vet.App. 573, 575-76 (2007), which
held that remand of the
question of entitlement to a total disability rating based on individual
unemployability does not
render the adjudication of an increased rating claim by the Board or this
Court meaningless.
Therefore, the Secretary contends, Mr. Cooper’s argument is without merit.
II. ANALYSIS
Mr. Cooper’s only assertion of error, that the Board should have remanded
the question of
whetherextraschedularconsideration was warranted alongwith thequestion of
entitlement to a total
disability rating based on individual unemployability, has been directly
addressed by the Court. In
Kellar v. Brown, the Court held that “the effect of a service-connected
disability appears to be
2
That regulation provides:
Ratings shall be based as far as practicable, upon the average impairments
of earning capacity with
the additional proviso that the Secretary shall from time to time readjust
this schedule of ratings in
accordance with experience. To accord justice, therefore, to the
exceptional case where the schedular
evaluations are found to be inadequate, the Under Secretary for Benefits
or the Director,
Compensation and Pension Service, upon field station submission, is
authorized to approve on the
basis of the criteria set forth in this paragraph an extra-schedular
evaluation commensurate with the
average earning capacity impairment due exclusively to the service-
connected disability or disabilities.
The governing norm in these exceptional cases is: A finding that the case
presents such an exceptional
or unusual disability picture with such related factors as marked
interference with employment or
frequent periods of hospitalization as to render impractical the
application of the regular schedular
standards.
38 C.F.R. § 3.321(b)(1) (2008).
4

measured differentlyfor purposes of extraschedular consideration under 38
C.F.R. § 3.321(b)(1) . . .
and for purposes of [entitlement to a total disability rating based on
individual unemployability]
under 38 C.F.R. § 4.16.” 6 Vet.App. 157, 162 (1994). That is,
extraschedular consideration for
disability rating purposes is warranted where there is “an exceptional or
unusual disability picture,
with such related factors as marked interference with employment or
frequent hospitalization,”while
extraschedular consideration for a total disability rating based on
individual unemployability is
warranted where a veteran is unemployable by reason of service-connected
disabilities that do not
meet certain percentage requirements and is “unable to secure and follow a
substantially gainful
occupation by reason” of those such service-connected disabilities. 38 C.F.
R. § 3.321(b)(1)
(emphasis added); 38 C.F.R. § 4.16(b) (2008). Consequently, the Court
found, the question of
entitlement to extraschedular consideration on appeal to the Court was not
inextricably intertwined
with the question of entitlement to a total disability rating based on
individual unemployability
remanded by the Board. Id.; see also Holland v. Brown, 6 Vet.App. 443, 446-
47 (1994). Because
Kellar is directly on point, the Court will affirm the Board’s June 2007
decision.3
III. CONCLUSION
Upon consideration of the foregoing, that portion of the June 1, 2007,
Board decision
regarding a claim for an increased disability rating for a skin condition
is AFFIRMED.
DATED: June 1, 2009

The Court notes that the Board’s analysis of whether Mr. Cooper was
entitled to referral for consideration of an extraschedular rating (see R. at 15) appears to conflate the first and second steps of that analysis set forth by this Court in Thun v. Peake. 22 Vet.App. 111, 115-16 (2008). Thun holds that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry: First, the Board must determine whether the “evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate;” second, if so, the adjudicator must “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked interference with employment or frequent periods of hospitalization; third, if the first two steps have been satisfied, the adjudicator must refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. However, Mr. Cooper, who is represented by counsel, asserts only that the question of referral for extraschedular consideration is inextricably intertwined with the question of entitlement to a total disability based on individual unemployability; therefore, the Court will not further address the Board’s analysis of extraschedular consideration.
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Copies to:
Allan T. Fenley, Esq.
VA General Counsel (027)
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