Veteranclaims’s Blog

August 21, 2017

Single Judge Application: Extraschedular Consideration; Thun, 22 Vet.App. at 115; 38 C.F.R. § 4.104; Diagnostic Code 7121; Yancy v. McDonald, 27 Vet.App. 484, 495 (2016); Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014);

Excerpt from decision below:

“The Board should have discussed evidence indicating that the appellant’s disorders produce “occasional paresthesias” in his calves and “a sensation of heaviness and weakness in the legs which contributes to frequent falls;” that compression stockings, which he wears “constantly,” provide “only . . . minimal relief of pain;” and that he has “persistent pain despite” elevating his legs. R. at
55. The Board also should have discussed evidence demonstrating that the appellant has “constant pain at rest.” R. at 56. According to Diagnostic Code 7121, constant pain at rest is a symptom necessary to warrant a 100% disability rating. That the appellant has such a severe symptom but has
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only been granted entitlement to 40% disability ratings may indicate that the schedular rating criteria are not adequate to compensate him for the unique features of his disability picture. Finally, the Board should have reviewed a VA medical examiner’s summation of the appellant’s present condition. The examiner wrote that the appellant “uses a cane for lower extremity weakness, pain,
and disequilibrium which contribute to falls. He notes frequent falls despite the cane.” R. at 57.
When conducting an extraschedular analysis, an adjudicator should compare “the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria for that disability.” Thun, 22 Vet.App. at 115. The evidence discussed above describes both symptomatology and the severity of the appellant’s disorders, and the Board should carefully
consider it on remand.1
The Court discerns an additional error in the Board’s analysis. When the record contains “evidence of the collective impact of the claimant’s service-connected disabilities,” then the Board must consider whether the combined effects of those disabilities indicate that referral to an appropriate agency official for extraschedular consideration is warranted. Yancy v. McDonald,
27 Vet.App. 484, 495 (2016); see also Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014).
The record indicates that the symptoms in the appellant’s right leg and left leg produce combined
effects. VA compensated the appellant for those symptoms, however, with separate disability ratings. It is unclear from the Board’s decision whether it considered the combined effects of the appellant’s right leg and left leg symptoms in a manner consistent with the legal authority cited above. It should ensure that it does so on remand.

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1
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-1190
ROBERT E. QUIGLEY, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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, Robert E. Quigley, appeals through counsel a December 8, 2015, Board of Veterans’ Appeals (Board) decision in which the Board (1) denied him entitlement to disability ratings greater than 40% for thrombophlebitis in both of his legs; (2) declined to refer his case to an appropriate agency official for extraschedular consideration; and (3) remanded a request for entitlement to a total disability rating based on individual unemployability for additional
development. Record (R.) at 2-13.
The issue remanded by the Board is not before the Court and the Court may not review it at
this time. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004); see also Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000). The appellant does not challenge the Board’s conclusion that
he is not entitled to increased schedular disability ratings for his right and left leg thrombophlebitis.
That issue is therefore deemed to be abandoned on appeal. See Ford v. Gober, 10 Vet.App. 531, 535
(1997) (arguments not raised before the Court are considered abandoned on appeal). The Court will
dismiss the appellant’s appeal of the Board’s disposition of that matter without reviewing the portion
of the Board’s decision addressing it. See Cacciola v. Gibson, 27 Vet.App. 45, 56-57 (2014).
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The only issue on appeal is whether the Board’s conclusion that the appellant’s case should
not be forwarded to an appropriate agency official for extraschedular consideration is undermined by
prejudicial error. This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when 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
conclusion that the appellant’s case should not be forwarded for extraschedular consideration and it will remand that matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from January 1982 until May 1982. R.
at 1246. By April 2005, the VA regional office (RO) had granted him entitlement to disability
benefits for superficial thrombophlebitis in his right leg and thrombophlebitis in his left leg and
assigned those disorders a noncompensable disability rating and a 20% disability rating respectively.
R. at 1081-84. In February 2008, the RO increased the disability rating assigned to the appellant’s
left leg thrombophlebitis to 40% effective October 10, 2007. R. at 929-31.
In January 2010, the appellant filed a claim for entitlement to increased disability ratings for
both lower extremity disorders. R. at 893. In July 2014, the RO increased the disability rating
assigned to the superficial thrombophlebitis in the appellant’s right leg to 10% effective May 22,
2014. R. at 285-89. In October 2015, VA increased that disability rating to 40% effective January
29, 2010. R. at 36-39.
On December 8, 2015, the Board issued the decision here on appeal. R. at 2-13.
II. ANALYSIS
The explanation that the Board gave for its conclusion that the appellant’s case should not be
referred to an appropriate agency official for extraschedular consideration reads as follows:
In this case, comparing the [appellant’s] disability level and symptomatology to the
rating schedule, the degree of disability throughout the appeal period under
consideration is contemplated by the rating schedule. The [appellant’s] left and right
lower extremity thrombophlebitis is rated on the basis of persistent edema and stasis
pigmentation that requires the use of compression hosiery and elevation. This
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directly corresponds to the schedular criteria for the 40 percent evaluations that have
been assigned . . . . For this reason, the Board finds that the assigned schedular
ratings are adequate to rate the [appellant’s] bilateral lower extremity disabilities, and
no referral for an extraschedular rating is required.
R. at 11.
The Board assigned disability ratings to the appellant’s disorders by applying the rating criteria found in 38 C.F.R. § 4.104, Diagnostic Code 7121, to the facts of his case. Pursuant to that provision, a noncompensable disability rating is warranted for “asymptomatic palpable or visible varicose veins”; a 10% disability rating is warrant for “intermittent edema of extremity or aching and
fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery”; a 20% disability rating is warranted for “persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema”; a 40% disability rating is warranted for “persistent edema and stasis pigmentation or eczema, with or
without intermittent ulceration”; a 60% disability rating is warranted for “persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration”; and a 100% disability rating is warranted for “massive board-like edema with constant pain at rest.” 38 C.F.R. § 4.104, Diagnostic Code 7121 (2017).
The Board discussed two symptoms that are in the rating criteria listed above but did not evaluate the appellant’s disability picture, including symptoms that are not explicitly mentioned in the rating criteria. See Thun v. Peake, 22 Vet.App. 111, 115 (2008) (holding that the “threshold factor” in an extraschedular analysis is whether “the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected
disability are inadequate”).
The Board should have discussed evidence indicating that the appellant’s disorders produce “occasional paresthesias” in his calves and “a sensation of heaviness and weakness in the legs which contributes to frequent falls;” that compression stockings, which he wears “constantly,” provide “only . . . minimal relief of pain;” and that he has “persistent pain despite” elevating his legs. R. at 55. The Board also should have discussed evidence demonstrating that the appellant has “constant pain at rest.” R. at 56. According to Diagnostic Code 7121, constant pain at rest is a symptom necessary to warrant a 100% disability rating. That the appellant has such a severe symptom but has
4
only been granted entitlement to 40% disability ratings may indicate that the schedular rating criteria are not adequate to compensate him for the unique features of his disability picture. Finally, the Board should have reviewed a VA medical examiner’s summation of the appellant’s present condition. The examiner wrote that the appellant “uses a cane for lower extremity weakness, pain, and disequilibrium which contribute to falls. He notes frequent falls despite the cane.” R. at 57.
When conducting an extraschedular analysis, an adjudicator should compare “the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria for that disability.” Thun, 22 Vet.App. at 115. The evidence discussed above describes both symptomatology and the severity of the appellant’s disorders, and the Board should carefully
consider it on remand.1
The Court discerns an additional error in the Board’s analysis. When the record contains “evidence of the collective impact of the claimant’s service-connected disabilities,” then the Board must consider whether the combined effects of those disabilities indicate that referral to an appropriate agency official for extraschedular consideration is warranted. Yancy v. McDonald, 27 Vet.App. 484, 495 (2016); see also Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014).
The record indicates that the symptoms in the appellant’s right leg and left leg produce combined effects. VA compensated the appellant for those symptoms, however, with separate disability ratings. It is unclear from the Board’s decision whether it considered the combined effects of the appellant’s right leg and left leg symptoms in a manner consistent with the legal authority cited above. It should ensure that it does so on remand.
1The Secretary asserts that the phrase “aching and fatigue in leg after prolonged standing or walking” in
Diagnostic Code 7121 demonstrates that the rating criteria adequately compensate veterans who are suffering from
chronic weakness and instability of the kind that the appellant has experienced. 38 C.F.R. § 4.104 Diagnostic Code
7121; Secretary’s Brief at 10, 13. The Secretary’s argument clearly is a post hoc rationalization for an insufficient Board
decision. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating
positions’ are not entitled to deference when they are merely appellant counsel’s ‘post hoc rationalizations’ for agency
action, advanced for the first time in the reviewing court.”). The Board discussed two symptoms only and neither
involves fatigue, walking, standing, or anything of the sort. The Secretary essentially acknowledges that the appellant’s
weakness and instability are symptoms that must be considered in the extraschedular context. That the Board did not do
so (or, at least, did not explain the outcome of its deliberations) constitutes plain reasons or bases error that the Secretary
cannot now mitigate. Finally, the Court will not accept the Secretary’s invitation to reach conclusions about how the
appellant’s weakness and instability relate to the rating criteria in Diagnostic Code 7121 before the Board has had an
opportunity to do so. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not
appropriate fora for initial fact finding”); see also 38 U.S.C. § 7261(c).
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The Court need not at this time address any other arguments that the appellant has raised. See
Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision
preserves for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him”).
On remand, the appellant is free to submit additional evidence and argument on the remanded matter,
and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi,
16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). The Court has held that “[a] remand is meant to entail a critical examination of the
justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must
proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for
“expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record, the
portion of the Board’s December 8, 2015, decision explaining its conclusion that the appellant’s case
should not be referred to an appropriate agency official for extraschedular consideration is
VACATED and that matter is REMANDED for further proceedings consistent with this decision.
The appellant’s appeal of the Board’s disposition of his claim for entitlement to increased schedular
disability ratings for thrombophlebitis in his left and right leg is DISMISSED.
DATED: August 18, 2017
Copies to:
Patrick Berkshire, Esq.
VA General Counsel (027)

 

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