Veteranclaims’s Blog

January 17, 2018

Single Judge Application; extraschedular rating; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); Thun v. Peake, 22 Vet.App. 111, 115 (2008); three step inquiry; Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009);

Excerpt from decision below:

“The VA rating schedule is based, “as far as practicable, upon the average impairments of earning capacity.” 38 C.F.R. § 3.321(b)(1) (2017). In exceptional cases, the rating schedule may be found inadequate to compensate a claimant’s unique set of symptoms and an extraschedular rating may be approved by the Under Secretary for Benefits or the Director of the Compensation Service. Id.
“The determination of whether a claimant is entitled to an extraschedular rating . . . is a three-step inquiry.” 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 necessary “elements” of an extraschedular rating analysis). The first step in the inquiry is to determine whether “the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that serviceconnected disability are inadequate.” Thun, 22 Vet.App. at 115. “[I]nitially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. If the adjudicator determines that the available schedular ratings are inadequate, the second step of the inquiry requires the adjudicator to “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Then, 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 Service for a determination of whether an extraschedular rating is warranted. Id.”

=======================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3683
DONALD N. BEELER, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Donald N. Beeler, through counsel appeals an
August 17, 2016, Board of Veterans’ Appeals (Board) decision that granted an initial disability rating of 10% for gastroesophageal reflux disease (GERD) and chronic diarrhea with hiatal hernia from August 1, 2007; denied an initial disability rating in excess of 30% for GERD and chronic diarrhea with hiatal hernia from April 10, 2013; denied initial compensable disability ratings for hypertension and allergic rhinitis; and declined to refer these claims for consideration of entitlement to an extraschedular rating. Record (R.) at 1-26. The Board’s grant of an initial
disability rating of 10% for GERD and chronic diarrhea with hiatal hernia from August 1, 2007, is a favorable finding that may not be disturbed by the Court. Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007); see Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . . decisions which are adverse to a claimant.”).
The appellant limits his arguments on appeal to the Board’s decision to decline to refer his claim for an initial compensable disability rating for allergic rhinitis for consideration of entitlement to an extraschedular rating. See Appellant’s Brief (Br.) at 1-10; Reply Br. at 1-8.
Therefore, the Court finds that he has abandoned his appeal as to the denial of entitlement to an
2
initial disability rating in excess of 10% for GERD and chronic diarrhea with hiatal hernia from
August 1, 2007; an initial disability rating in excess of 30% for GERD and chronic diarrhea with
hiatal hernia from April 10, 2013; an initial compensable disability rating for hypertension; and an
initial compensable disability rating for allergic rhinitis, on a schedular basis. The Court will
dismiss the appeal as to the abandoned issues. See Pederson v. McDonald, 27 Vet.App. 276, 285
(2015) (en banc) (holding that, where an appellant abandons an issue or claim, the Court will not
address it).
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 affirm the
Board’s August 17, 2016, decision regarding the Board’s refusal to refer the claim for an initial
compensable disability rating for allergic rhinitis for consideration of entitlement to an
extraschedular rating.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from November 1979 to April 1980
and in the U.S. Air Force from November 1981 to July 2007. R. at 424-25. In May 2007, the
appellant filed a claim for disability compensation for, among other things, sinusitis and hay fever.
R. at 3296.
In September 2007, the appellant underwent a VA general medical examination, during
which he reported “symptoms of allergic rhinitis with itchy eyes and runny nose, at least once in
two months,” which he successfully treated with one tablet of Allegra-D daily. R. at 1548
(reflecting the appellant’s disclosure that his symptoms were “well controll[ed]” with medication).
During a September 2007 VA otolaryngology examination, the appellant provided a “long history”
of sinus congestion and recurrent sinus headaches, which he had described as experiencing in the
middle of his forehead, behind his eyes, and in the center of his head. R. at 1564. Examination of
the ear, nose, and throat was normal and unremarkable, except for somewhat pale and mildly
edematous middle and inferior turbinates of the nose. Id. The examiner found no nasal polyps or
significant nasal obstruction. Id. A contemporaneous CT scan of the paranasal passages revealed
no evidence of paranasal sinus pathology. R. at 1564-65. The examiner diagnosed the appellant
with allergic rhinitis, ruling out acute and chronic sinusitis and further finding that the appellant’s
3
recurrent headaches were not related to any sinus pathology because there was no evidence of
ethmoid or sphenoid sinus disease. R. at 1565.
In December 2007, a VA regional office (RO) granted entitlement to disability
compensation for allergic rhinitis with an initial noncompensable disability rating effective
August 1, 2007. R. at 1033-43. Private treatment records from 2008 document various complaints
by the appellant, including of headaches and rhinitis, but none of these records identifies the
appellant’s headaches as related to his allergic rhinitis. R. at 1111-15 (Jan. 2008), 1128-32 (Feb.
2008), 1134-36 (Mar. 2008), 1117-20 (Apr. 2008). The appellant timely perfected his appeal of
the December 2007 decision. R. at 528 (Jan. 2008 Notice of Disagreement), 538 (Oct. 2010
Substantive Appeal), 540-45 (Sept. 2010 Statement of the Case).
In February 2011, the appellant underwent a VA examination. R. at 509-12. The appellant
complained of frequent sore throats and phlegm, which bother him in the evenings, as well as near
constant headaches and pressure around the eyes. R. at 509-10. The examiner found that the effect
of the appellant’s allergic rhinitis on his usual occupation—”human resources, federal bureau of
prisons”—was significant and resulted in pain, daily headaches, and decreased concentration,
which interfere with the ability to concentrate on work tasks. R. at 511.
In March 2012, the appellant underwent another VA examination. R. at 481-91.
Examination showed that the appellant did not experience greater than 50% obstruction of the
nasal passages on both sides due to rhinitis, complete obstruction of one side of the nasal passages
due to rhinitis, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous
conditions. R. at 485. Additionally, the examiner concluded that the appellant’s allergic rhinitis did
not impact the appellant’s ability to work. R. at 491.
On August 17, 2016, the Board declined to refer the appellant’s claim for an initial
compensable disability rating for allergic rhinitis for consideration of entitlement to an
extraschedular rating. R. at 21-22. This appeal followed.
II. ANALYSIS
The appellant argues that the Board erred in declining to refer his allergic rhinitis claim for
extraschedular consideration because it failed to properly apply 38 C.F.R § 3.321(b)(1) and,
alternatively, to support its decision with adequate reasons or bases. Appellant’s Br. at 3-10; Reply
Br. at 1-8. The Secretary contends that the Board accounted for all of the appellant’s allergic rhinitis
4
symptoms and properly declined to refer the claim for extraschedular consideration. Secretary’s Br. at 7-11.
The VA rating schedule is based, “as far as practicable, upon the average impairments of earning capacity.” 38 C.F.R. § 3.321(b)(1) (2017). In exceptional cases, the rating schedule may be found inadequate to compensate a claimant’s unique set of symptoms and an extraschedular rating may be approved by the Under Secretary for Benefits or the Director of the Compensation Service. Id.
“The determination of whether a claimant is entitled to an extraschedular rating . . . is a three-step inquiry.” 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 necessary “elements” of an extraschedular rating analysis). The first step in the inquiry is to determine whether “the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that serviceconnected disability are inadequate.” Thun, 22 Vet.App. at 115. “[I]nitially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. If the adjudicator determines that the available schedular ratings are inadequate, the second step of the inquiry requires the adjudicator to “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Then, 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 Service for a determination of whether an extraschedular rating is warranted. Id.
The Board’s determination whether referral for an extraschedular disability rating is
appropriate is a finding of fact that the Court reviews under the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Thun v. Peake, 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 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must provide a statement of the reasons or bases for its determination “adequate
to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate
5
review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1);
Gilbert, 1 Vet.App. at 56-57.
The following constitutes the entirety of the Board’s extraschedular analysis and
conclusion:
The [appellant] has not identified any factors which may be considered to be
exceptional or unusual, and the Board has been similarly unsuccessful. There is no
evidence in the medical records of an exceptional or unusual clinical picture. The
record demonstrates that the [appellant] has not required hospitalization as a result
of his service-connected GERD and chronic diarrhea with hiatal hernia;
hypertension; and allergic rhinitis disabilities. Further, the record does not
demonstrate any other reason why an extraschedular rating should be assigned.
Accordingly, the Board therefore has determined that referral of the case for
extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.
R. at 22.
With respect to the propriety of the Board’s application of 38 C.F.R § 3.321(b)(1), the
appellant submits two arguments. First, he contends that the Board failed to apply the first step of
the Thun analysis, which involves a comparison between the level of severity and symptomatology
of the appellant’s allergic rhinitis—including headaches, sore throats, and pressure around the
eyes—with Diagnostic Code 6522, which allows a 30% disability rating for allergic rhinitis with
polyps, and a 10% disability rating for allergic rhinitis without polyps but with greater than 50%
obstruction of the nasal passage on both sides or complete obstruction on one side. See 38 C.F.R.
§ 4.97, Diagnostic Code 6522 (2017); see also Appellant’s Br. at 4-6; Reply Br. at 1, 3-5. Second,
he maintains that the Board failed to complete the second step of the Thun analysis, which requires
consideration of whether the appellant’s allergic rhinitis exhibits other related factors, such as
marked interference with employment or frequent periods of hospitalization. Appellant’s Br. at
6-8; Reply Br. at 1, 6-8. The Court agrees with the appellant that the Board failed to offer complete
analyses for each of these steps of the Thun analysis, as demonstrated by the Board’s absent or
incomplete discussion. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App.
at 56-57; see also Appellant’s Br. at 8-10.
Nonetheless, the Court must “take due account of the rule of prejudicial error” pursuant to
38 U.S.C. § 7261(b)(2). See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that the
harmless-error analysis applies to the Court’s review of Board decisions and that the burden is on
the appellant to show that he suffered prejudice as a result of VA error). “[This] statutory obligation
6
[also] permits the . . . Court to go outside of the facts as found by the Board to determine whether
an error was prejudicial by reviewing ‘the record of the proceedings before the Secretary and the
Board.'” Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (quoting Newhouse v.
Nicholson, 497 F.3d 1298, 1302-03 (Fed. Cir. 2007)).
The appellant argues that he was prejudiced by the Board’s misapplication of 38 C.F.R.
§ 3.321 because it resulted in the finding that referral for extraschedular consideration was not
warranted. Appellant’s Br. at 3, 4, 6, 10; Reply Br. at 7. Specifically, he avers that he was
prejudiced by the Board’s failure to conduct an analysis under step one of Thun because “the rating
criteria, on its face, does not contemplate the [appellant’s] symptoms.” Appellant’s Br. at 6.
However, “an error with respect to one [Thun] element does not necessarily affect the Board’s
analysis of the other element. If either element is not met, then referral for extraschedular
consideration is not appropriate.” Yancy v. McDonald, 27 Vet.App. 484, 494-95 (2016). With
respect to step two of Thun, the appellant contends only that he was prejudiced by the Board’s
failure to address the February 2011 VA examiner’s finding that his allergic rhinitis “caused daily
headaches which had significant effects on his occupation and his ability to concentrate on work
tasks.” Appellant’s Br. at 6; see Reply Br. at 7.
The Court, however, is not persuaded by the appellant’s argument. Although the February
2011 VA examiner characterized the occupational effects of the appellant’s allergic rhinitis—
decreased concentration, pain, and daily headaches which interfered with his ability to concentrate
on work tasks—as significant, the appellant has not argued or demonstrated that this finding
equates to a showing of marked interference with employment. R. at 511. Additionally, the
appellant has not offered the Court any specific allegation or argument or cited to any evidence
showing how his allergic rhinitis interferes with his employment to any degree.
Based upon the foregoing, the Court finds that the appellant has failed to demonstrate
prejudicial error in the Board’s analysis of the second step of the Thun analysis. See Shinseki v.
Sanders, 556 U.S. at 410 (appellant generally bears the burden of demonstrating prejudicial error
on appeal); Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary in the absence
of demonstrated prejudice). Therefore, the Court will affirm the Board’s finding that referral for
consideration of entitlement to an extraschedular rating for allergic rhinitis is not warranted. See
Yancy, 27 Vet.App. at 494-95 (affirming that referral for extraschedular consideration is
inappropriate where either step one or step two of Thun is not met).
7
III. CONCLUSION
The appeal of the Board’s August 17, 2016, decision denying an initial disability rating in
excess of 10% for GERD and chronic diarrhea with hiatal hernia from August 1, 2007; an initial
disability rating in excess of 30% for GERD and chronic diarrhea with hiatal hernia from April 10,
2013; an initial compensable disability rating for hypertension; and an initial compensable
disability rating for allergic rhinitis, on a schedular basis, is DISMISSED. After consideration of
the parties’ pleadings and a review of the record, the Board’s August 17, 2016, decision declining
to refer the claim for an initial compensable disability rating for allergic rhinitis for consideration
of entitlement to an extraschedular rating is AFFIRMED.
DATED: January 16, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.