Veteranclaims’s Blog

February 23, 2020

Second Extraschedular element; 38 C.F.R. § 3.321(b)(1) (2019); The Court notes that the Board’s refusal to address the second extraschedular element and rest its referral decision on the first element alone has been commonplace lately;

Filed under: Uncategorized — veteranclaims @ 12:18 am

Designated for electronic publication only
No. 19-0368
Before TOTH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

TOTH, Judge: Veteran Victor Rovira appeals from the part of an October 2018 Board
decision that declined to refer his type II diabetes mellitus claim for extraschedular consideration.1
The veteran argues that the Board did not properly analyze the question and that the Court should reverse because, under the correct analysis, the referral criteria were met. Alternatively, he contends that the Board provided inadequate reasons or bases to support its decision. “To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service” may assign “an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability.” 38 C.F.R. § 3.321(b)(1) (2019). “The governing norm in these
exceptional cases is a finding . . . that application of the regular schedular standards is impractical
because the disability is so exceptional or unusual due to such related factors as marked
interference with employment or frequent periods of hospitalization.” Id. “Generally, the first
element or step in an extraschedular analysis is for the Board to compare the severity and type of
symptoms manifested by a service-connected disability with the schedular rating criteria for that
1 Because he doesn’t challenge the Board’s denial of a schedular diabetes rating above 20%, the Court
dismisses the appeal as to that issue. See Atilano v. Wilkie, 31 Vet.App. 272, 278 n.3 (2019). The Board’s remand of
five other matters does not constitute a final decision giving the Court jurisdiction over those issues. See id.
disability.” Rossy v. Shulkin, 29 Vet.App. 142, 144 (2017). This is, in other words, “an inquiry into
whether the claimant’s disability picture is contemplated by the rating schedule.” Id. (internal
quotations marks omitted).
Petermann v. Wilkie, 30 Vet.App. 150 (2017), held that, in the context of the diagnostic
code for diabetes mellitus, the proper comparison for purposes of the first-element analysis is
between a veteran’s disability and the criteria of the particular rating assigned (e.g., the 20%
criteria) rather than the criteria of the diagnostic code as a whole. Although the October 2018
Board decision here was issued two months after Petermann was decided, the Board doesn’t
mention the case or undertake the analysis prescribed therein. Failure to correctly apply the law
warrants vacatur and remand for proper adjudication. See Perciavalle v. Wilkie, 32 Vet.App. 59,
67 (2019).
The Secretary concedes error. Secretary’s Br. at 9 (agreeing that “Petermann is applicable
in this case and . . . the Board erred when it failed to apply this precedential” decision). The Court
accepts the concession. See Checo v. Shinseki, 748 F.3d 1373, 1378 n.6 (Fed. Cir. 2014). But the
Secretary nevertheless urges the Court to affirm because Mr. Rovira hasn’t shown that the second
extraschedular element is met. Even if the Board determines that a veteran’s symptoms are not
adequately contemplated by schedular criteria, referral for extraschedular consideration is not
warranted unless the claim exhibits other related factors such as “marked interference with
employment” or “frequent periods of hospitalization.” Chudy v. O’Rourke, 30 Vet.App. 34, 38
(2018). If this second element is not satisfied, any error in the Board’s adjudication of the first
element is harmless. Id.
Here, the problem is that the Board declined to consider the second element. “In the absence
of this threshold finding”—i.e., “that the schedular evaluation is adequate to rate this disability”—
the Board reasoned, “there is no need to consider whether there are ‘related factors’ such as marked
interference with employment or frequent periods of hospitalization.”2 R. at 12. The Secretary
asserts that the veteran failed to establish that his diabetes met the second element, but Mr. Rovira’s
opening brief argued that “there is definitive evidence that [his] diabetes caused marked
interference with his employment.” Appellant’s Br. at 11.
2 The Court notes that the Board’s refusal to address the second extraschedular element and rest its referral decision on the first element alone has been commonplace lately.
The Court’s obligation to “take due account of the rule of prejudicial error,” 38 U.S.C.
§ 7261(b)(2), does not limit it “to the facts as found by the Board, but rather requires a full review
of the record to determine if the error is prejudicial.” Simmons v. Wilkie, 30 Vet.App. 267, 284
(2018). Where prejudice is not obvious, the appellant bears the burden of showing that error is not
harmless. Id. at 277, 280. Here, Mr. Rovira has provided sufficient argument regarding the second
element to prevent the Court from concluding that the Board’s conceded error regarding the first
element is harmless. For example, he contends that his discharge from the National Guard in 2015
was “due in large part to his diabetes” and that this condition renders him unemployable.
Appellant’s Br. at 11. The Secretary disputes this characterization of the evidence, but in the
absence of any findings from the Board, the Court is not in a position to say that the veteran hasn’t
met the second extraschedular element. To be clear, the Court expresses no opinion on whether
the evidence actually demonstrates marked interference with employment. But there are some
determinations—especially on disputed issues like the extent to which diabetes interferes with the
veteran’s employment—that the Court should not make in the first instance.
Having accepted the Secretary’s concession that the Board failed to apply Petermann, and
not being able to conclude that this error was harmless, the Court vacates and remands for
readjudication. To the extent the veteran argues that the Court should reverse and order the Board
to refer his claim for extraschedular consideration, such relief is premature because the Board has
yet to make necessary factual findings under the required legal framework. See Romanowsky v.
Shinseki, 26 Vet.App. 289, 297 (2013). Finally, because the Court does not believe that a decision
in Long v. Wilkie, U.S. Vet. App. No. 16-1537 (en banc oral argument held August 28, 2019),
would directly affect the proper disposition of this case, the Court denies the Secretary’s motion to
stay proceedings.
The portion of the October 15, 2018, Board decision denying referral of the diabetes claim
for extraschedular consideration is VACATED and that matter is REMANDED for readjudication
consistent with this decision. The Secretary’s December 16, 2019, motion to stay proceedings is
DATED: February 20, 2020
Copies to:
Glenn R. Bergmann, 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