Veteranclaims’s Blog

January 8, 2018

Single Judge Application; extraschedular rating; § 3.321(b); King v. Shulkin, 29 Vet.App. __, U.S. Vet. App. No. 16-2959 (Dec. 21, 2017);

Excerpt from decision below:

“… extraschedular rating under § 3.321(b) is a three-step inquiry”: If (1) the schedular evaluation does not contemplate the claimant’s level of disability and
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symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) (clarifying that the three “steps” identified in Thun are actually three necessary “elements” of an extraschedular rating analysis). “[T]he first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.” Yancy v. McDonald, 27 Vet.App. 484, 494 (2016). Although the first and second elements are interrelated, they involve separate and distinct analyses. Id. Thus, “an error with respect to one element does not necessarily affect the Board’s analysis of the other element.” Id. “If either element is not met, then referral for extraschedular consideration is not appropriate.” Id. at 494-95.”

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“The Court recently issued its decision in King v. Shulkin, which addressed language similar to that used by the Board in this case. 29 Vet.App. __, U.S. Vet. App. No. 16-2959 (Dec. 21, 2017). The King Court held unequivocally that “[t]he Board’s apparent use of the fact that the rating criteria ‘provided for higher ratings for more severe symptoms’ as a reason to deny the appellant referral for extraschedular consideration is incorrect as a matter of law,” and “relying on the availability of higher schedular ratings in denying extraschedular consideration is directly contrary to this Court’s ruling in Thun and warrants remand.” 29 Vet.App. at __, slip op. at 8-9. In light of this holding, the Board’s statement of reasons or bases in the present case is clearly inadequate, and the Court will remand the matter. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is warranted “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2068
ROBERT H. BLACK, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Robert H. Black, through counsel, appeals a May 3, 2016, Board of Veterans’ Appeals (Board) decision in which the Board denied increased rating claims for right foot neuropathy, left foot neuropathy, bilateral hearing loss, and referral for extraschedular consideration. Record of Proceedings (R.) at 1-19. Additionally, the Board remanded a claim of entitlement to a total disability rating based on individual unemployability (TDIU) and an increased rating claim for post-traumatic stress disorder. R. at 13-17. The remanded claims are not before the Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board may not be reviewed by the Court). This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will lift the stay imposed on September 22, 2017, vacate the Board’s decision, and remand the matter for proceedings consistent with this decision.

I. BACKGROUND
The appellant served in the U.S. Army from February 1949 to June 1952. R. at 942-43. He filed a disability compensation claim for hearing loss in October 2007, and in June 2008, the
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regional office (RO) granted service connection for bilateral hearing loss, with a disability rating of 10%; right foot neuropathy, residual of cold injuries, with a disability rating of 30%; and left foot neuropathy, residual of cold injuries, with a disability rating of 30%. R. at 692-701.
Subsequently, in December 2012, the RO issued a new decision, finding clear and unmistakable error in the June 2008 decision. R. at 436-44. In the new rating decision, the RO granted the appellant a 10% disability rating for right foot neuropathy, with an effective date of October 24, 2007; an increased 20% disability rating for right foot neuropathy, with an effective date of April 9, 2012; and a 10% disability rating for left foot neuropathy, with an effective date of October 24, 2007. R. at 436-44. The RO also continued 30% disability ratings for both feet for the residuals of cold injuries (which the appellant claimed as frost bitten feet). R. at 437.
On May 3, 2016, the Board issued the decision on appeal, denying increased disability ratings for right foot neuropathy, left foot neuropathy, bilateral hearing loss, and referral for extraschedular consideration. R. at 1-19. In its analysis of why extraschedular referral was not warranted, the Board stated that “[t]he evidence in this case does not show that the [appellant] has such an exceptional disability picture that the available schedular ratings are inadequate” because “there are higher ratings available under the diagnostic codes relating to nerves and hearing loss, but the [appellant’s] disabilities are not productive of such manifestations.” R. at 12. Additionally, the Board remanded a claim of entitlement to TDIU and an increased-rating claim for post-traumatic stress disorder. R. at 13-17. This appeal followed.

II. ANALYSIS
The appellant does not raise any argument concerning the Board’s denial of increased schedular ratings for bilateral hearing loss and neuropathy of the left and right feet. Accordingly, the Court will not address these matters. Instead, the appellant argues that the Board did not provide adequate reasons or bases for its decision to deny extraschedular referral for the appellant’s hearing loss and neuropathy claims. Appellant’s Brief (Br.) at 8-18. The Secretary contends that the Board’s statement of reasons or bases was adequate. Secretary’s Br. at 6-15.
“Whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry”: If (1) the schedular evaluation does not contemplate the claimant’s level of disability and
3
symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) (clarifying that the three “steps” identified in Thun are actually three necessary “elements” of an extraschedular rating analysis). “[T]he first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.” Yancy v. McDonald, 27 Vet.App. 484, 494 (2016). Although the first and second elements are interrelated, they involve separate and distinct analyses. Id. Thus, “an error with respect to one element does not necessarily affect the Board’s analysis of the other element.” Id. “If either element is not met, then referral for extraschedular consideration is not appropriate.” Id. at 494-95.
The Board’s determination whether referral for an extraschedular disability rating is appropriate is a factual determination that the Court reviews under the “clearly erroneous” standard of review. Thun, 22 Vet.App. at 115. A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). In rendering its decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
Here, the Board stated that referral for extraschedular consideration was not warranted because [t]he evidence in this case does not show that the [v]eteran has such an exceptional disability picture that the available schedular ratings are inadequate. As discussed above, there are higher ratings available under the diagnostic codes relating to nerves and hearing loss, but the [v]eteran’s disabilities are not productive of such manifestations. As such, it cannot be said that the available schedular evaluations
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for the disabilities are inadequate and, therefore, no extraschedular referral is required. R. at 12 (citations omitted).
The Court recently issued its decision in King v. Shulkin, which addressed language similar to that used by the Board in this case. 29 Vet.App. __, U.S. Vet. App. No. 16-2959 (Dec. 21, 2017). The King Court held unequivocally that “[t]he Board’s apparent use of the fact that the rating criteria ‘provided for higher ratings for more severe symptoms’ as a reason to deny the appellant referral for extraschedular consideration is incorrect as a matter of law,” and “relying on the availability of higher schedular ratings in denying extraschedular consideration is directly contrary to this Court’s ruling in Thun and warrants remand.” 29 Vet.App. at __, slip op. at 8-9. In light of this holding, the Board’s statement of reasons or bases in the present case is clearly inadequate, and the Court will remand the matter. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is warranted “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
Given this disposition, the Court will not, at this time, address the other arguments and issues raised by the appellant. 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 matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); 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 Secretary to provide for “expeditious treatment” of claims remanded by the Court).
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III. CONCLUSION
The stay imposed by the Court on September 22, 2017, is LIFTED. After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the Board’s May 3, 2016, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: January 5, 2018
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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