Veteranclaims’s Blog

January 16, 2018

Single Judge Application; King v. Shulkin, extraschedular referral;

Filed under: Uncategorized — Tags: , — veteranclaims @ 5:13 pm

Excerpt from decision below:

“As this Court recently held in King v. Shulkin, “the availability of higher schedular ratings plays no role in an extraschedular analysis and it is inappropriate for the Board to deny extraschedular referral on this basis.” __ Vet.App. __, No. 16-2959, 2017 WL 6523588, at *5 (Dec. 21, 2017). Therefore, in light of King, the Board’s discussion of the availability of higher schedular ratings in its extraschedular analysis of appellant’s bilateral lower extremity neuropathy was clearly erroneous and warrants remand. See Tucker, 11 Vet.App. at 374.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1755
IGNACIO VILLAROS, JR., APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Ignacio Villaros, Jr., appeals through counsel an April 8, 2016, Board of Veterans’ Appeals (Board) decision denying him a rating higher than 20% for peripheral neuropathy of the left lower extremity, a rating higher than 10% prior to May 16, 2015, and 20% as of May 16, 2015, for peripheral neuropathy of the right lower extremity, and extraschedular referral.1 This appeal was timely filed. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). As discussed below, the Court will set aside the Board’s April 8, 2016, decision and remand the matter for further proceedings.

I. ANALYSIS
Appellant argues the Board erred by failing to provide an adequate statement of reasons or bases for denying him a higher rating for his bilateral lower extremity neuropathy and by
1 The Board also denied entitlement to higher ratings for (1) residuals of a fracture of the left transverse
process; (2) diabetes mellitus, type II, with erectile dysfunction; (3) status-post left knee operation with residual staples
and post-operative arthritis, excluding left knee instability; and (4) hypertension. As appellant does not appeal these
issues, they will be considered abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc)
(declining to review the merits of an issue not argued on appeal and dismissing that portion of the appeal).
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incorrectly applying the law in its discussion of why appellant was not entitled to extraschedular
referral. The Court considers each issue in turn.
A. Increased Ratings for Bilateral Lower Extremity Neuropathy
Appellant argues the Board’s statement of reasons or bases for its decision to deny him a
higher rating for his bilateral lower extremity neuropathy was inadequate because the Board
“merely listed some of the evidence of record and then baldly concluded” that appellant’s bilateral
lower extremity radiculopathy was not more than moderate, failed to relate his symptoms to the
rating criteria and explain how those symptoms were deemed to be mild and moderate rather than
severe, and improperly relied on a May 2015 VA examiner’s finding that appellant “had moderate
incomplete paralysis of the bilateral lower extremities.”
“The Board is required to provide a written statement of the reasons or bases for its findings
and conclusions on all material issues of fact and law presented on the record” and it “must be
adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as
to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see
38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). “To comply with this requirement, the Board must analyze the
credibility and probative value of the evidence, account for the evidence which it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
favorable to the veteran.” Allday, 7 Vet.App. at 527. The Board’s findings of fact and weighing of
evidence are questions of fact that must be upheld unless clearly erroneous. 38 U.S.C. §
7261(a)(4).
“The Court has long held that merely listing the evidence before stating a conclusion does not constitute an adequate statement of reasons or bases.” Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)). Yet that is precisely what the Board did here. Much of the Board’s decision regarding appellant’s bilateral lower extremity neuropathy consists of a chronological cataloguing of his prior medical examinations. The Board then found, in conclusory fashion, that appellant’s neuropathy did not warrant a higher rating.
Without the Board explaining how it weighed the medical evidence of record and which specific medical findings it relied on, judicial review is frustrated and remand is warranted. See Allday, 7 Vet.App. at 527; Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is
3
appropriate “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.”).

B. Extraschedular Referral
Regarding extraschedular referral for appellant’s bilateral lower extremity neuropathy, the Board stated as follows:
The threshold factor for extraschedular consideration is a finding that the evidence
before VA presents such an exceptional disability picture that the available
schedular evaluations for that service-connected disability are inadequate. Here, the
rating criteria reasonably describe the Veteran’s disability levels and
symptomatology and provide for higher ratings for additional or more severe
symptoms than currently shown by the evidence. In this regard, all symptomatology associated with his disability picture is contemplated in [d]iagnostic [c]odes; thus, his disability picture is contemplated by the rating schedule, and each assigned schedular evaluation is, therefore, adequate. Consequently, referral for extraschedular consideration is not warranted.
(emphasis added) (internal citations omitted).
As this Court recently held in King v. Shulkin, “the availability of higher schedular ratings plays no role in an extraschedular analysis and it is inappropriate for the Board to deny extraschedular referral on this basis.” __ Vet.App. __, No. 16-2959, 2017 WL 6523588, at *5 (Dec. 21, 2017). Therefore, in light of King, the Board’s discussion of the availability of higher schedular ratings in its extraschedular analysis of appellant’s bilateral lower extremity neuropathy was clearly erroneous and warrants remand. See Tucker, 11 Vet.App. at 374.
Because the Court will set aside the Board’s decision due to the Board’s failure to explain
its finding that appellant’s bilateral lower extremity radiculopathy was not more than moderate, it
need not address his other arguments regarding his increased rating claim. See Best v. Principi,
15 Vet.App. 18, 20 (2001) (noting that the factual and legal context of an appeal may change
following a remand to the Board and explaining 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 [or her]”).
On remand, appellant is free to submit additional evidence and argument, including the
arguments raised in the briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam) and the Board must consider any such evidence or argument
submitted, Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a]
remand is meant to entail a critical examination of the justification for the decision,” Fletcher v.
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Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in accordance
with 38 U.S.C. §§ 5109B and 7112.
II. CONCLUSION
After consideration of the parties’ briefs, and a review of the record, the Board’s April 8,
2016, decision denying appellant increased ratings for his bilateral lower extremity neuropathy
and extraschedular referral is SET ASIDE and REMANDED for further proceedings consistent
with this decision.
DATED: January 12, 2018
Copies to:
Matthew J. Pimentel, Esq.
VA General Counsel (027)

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