Veteranclaims’s Blog

October 13, 2021

Single Judge Application; deficient reasons and bases; It is the Board’s responsibility as factfinder to assess and weigh the evidence.18 Here, we simply do not know the weight, if any, the Board gave this evidence in assigning a rating for appellant’s GERD. It is important for the Board to make such a finding in the first instance.19 We recognize that the Secretary offers several arguments about why extraschedular referral is not warranted for appellant’s GERD. However, it is ultimately not his prerogative to provide an explanation that the Board did not. As we have often said, the Secretary cannot make up for the Board’s deficient statement of reasons or bases.20; 19 See Tadlock v. McDonough, 5 F.4th 1327, 1337-38 (Fed. Cir. 2021) (“Where additional findings of fact are necessary regarding mattes open to debate, the proper action is for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”).; 20 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.'” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot make up for shortcomings in the Board’s assessment.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons-or-bases errors), aff’d, 964 F.3d 1381 (Fed. Cir. 2020); Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this Court.”).;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-0092
FRANCIS DOUGHERTY, APPELLANT,
V.
DENIS MCDONOUGH,
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 Francis Dougherty served the Nation honorably in the United
States Navy from January 1957 to March 1957.1 In this appeal, which is timely and over which
the Court has jurisdiction,2 he challenges a September 8, 2020, decision of the Board of Veterans’
Appeals that denied entitlement to a disability rating greater than 30% for irritable bowel syndrome
(IBS) with gastroesophageal reflux disease (GERD), including on an extraschedular basis. Because
the Board did not provide an adequate statement of its reasons or bases that accounted for all of
appellant’s symptoms, we will set aside the Board’s decision and remand the matter for further
proceedings consistent with this decision.
I. ANALYSIS
Appellant does not challenge the Board’s denial of a disability rating greater than 30% for
his IBS and GERD under VA’s rating schedule. Instead, he argues that the Board erred in failing
to consider the severity of his GERD symptoms in finding that he was not entitled to extraschedular
referral. Specifically, he reports several symptoms that the Board failed to discuss: Acid reflux,
1 Record (R.) at 1362.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
2
sleep disturbance, a need to be near a bathroom, an inability to travel long distances, and the impact
of his service-connected depression on his GERD. He asserts that these symptoms are not
contemplated by his 30% disability rating under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319,
which provides the rating criteria for IBS and under which his GERD is rated by analogy. He
contends that these symptoms are part of an exceptional disability picture and have a marked
interference with employment, and that the Board erred in not considering them. The Secretary
defends the Board’s decision in full and urges affirmance.
When the rating schedule is insufficient to compensate a veteran for a service-connected
disability,3 extraschedular evaluation may be appropriate. For these exceptional cases, 38 C.F.R.
§ 3.321(b)(1) provides
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 or his or her delegate is authorized to approve on the basis
of the criteria set forth in this paragraph (b), an extraschedular evaluation
commensurate with the average impairment of earning capacity due exclusively to
the disability. The governing norm in these exceptional cases is a finding by the
Director of Compensation Service or delegate 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.[4]
In Thun v. Peake, this Court held that determining whether a veteran is entitled to a referral
for consideration of an extraschedular rating under § 3.321(b) requires a three-part inquiry.5 The
first element requires the Board to determine whether the “evidence before VA presents such an
exceptional disability picture that the available schedular evaluations for the service-connected
disability are inadequate.”6 If the Board determines that a veteran’s symptoms or their severity is
not contemplated by the rating schedule, the second element requires the Board to “determine
whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked
interference with employment or frequent periods of hospitalization.7 Finally, if the first two
3 See 38 C.F.R. §§ 4.20, 4.27 (2021); see also Morgan v. Wilkie, 31 Vet.App. 162, 167-69 (2019).
4 38 C.F.R. § 3.321(b) (2021).
5 22 Vet.App. 111. 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
6 Id.
7 Id.at 116.
3
elements are met, the final element mandates that the Board refer the claim to the Director of
Compensation Service for a determination about whether an extraschedular rating is warranted.8
As the Court made clear in Long v. Wilkie,9 to reasonably raise the issue of entitlement to
extraschedular referral, the record must suggest, at a minimum, that the veteran’s service-connected
disability is exceptional in some respect. Exceptionality is assessed by comparing the severity and
symptoms of a veteran’s service-connected disability with the relevant rating criteria to determine
whether they contemplate the veteran’s disability picture.10
The Board’s findings that a claimant has not presented an exceptional disability picture
because the rating criteria reasonably described his disability level and symptomatology are factual
determinations we review for clear error.11 We may overturn the Board’s factual findings only if
there is no plausible basis in the record for the Board’s decision and the Court is “‘left with the
definite and firm conviction'” that the Board’s decision was in error.12
Most relevant for this appeal, for all findings on a material issue of fact and law, the Board
must support its decision with an adequate statement of reasons or bases that enables a claimant to
understand the precise bases for the Board’s decision and facilitates review in this Court.13 To
comply with this requirement, the Board must analyze the credibility and probative value of
evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for tis
rejection of material evidence favorable to the claimant.14 If the Board fails to do so, remand is
appropriate.15
In its decision, the Board found that appellant’s GERD was rated by analogy under DC
7319 and that he had received the highest rating–30%–under that DC.16 The Board considered
8 Id.
9 33 Vet.App. 167, 173 (2020).
10 Thun, 22 Vet.App. at 155; Long, 33 Vet.App. at 173.
11 See Long, 33 Vet.App. at 172-73; see also Chudy v. O’Rourke, 30 Vet.App. 34, 38 (2018).
12 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)). Appellant argues that the Court should review this matter using a de novo standard of review. However, de
novo review is inconsistent with this Court’s caselaw, which requires deference to the Board’s factual findings.
13 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
14 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
15 Tucker v. West, 11 Vet.App. 369, 374 (1998).
16 R. at 8.
4
whether appellant was entitled to a higher rating under a different DC but found that his symptoms
did not warrant a disability rating higher than 30% under any other digestive system DC. The
Board also found that the rating schedule was adequate to compensate appellant’s symptoms,
because none were unusual enough to warrant extraschedular consideration under Thun step one.
The Board thus denied an extraschedular rating.
The Board failed to provide an adequate statement of its reasons or bases, which frustrates
judicial review. The October 2019 VA examiner found that appellant’s GERD caused sleep
disturbance.17 However, in assessing the appropriate disability rating for appellant’s GERD, the
Board did not mention this symptom in either its schedular or extraschedular analysis. It is the Board’s responsibility as factfinder to assess and weigh the evidence.18 Here, we simply do not know the weight, if any, the Board gave this evidence in assigning a rating for appellant’s GERD.
It is important for the Board to make such a finding in the first instance.19
We recognize that the Secretary offers several arguments about why extraschedular referral is not warranted for appellant’s GERD. However, it is ultimately not his prerogative to provide an explanation that the Board did not. As we have often said, the Secretary cannot make up for the
Board’s deficient statement of reasons or bases.20
Thus, we must remand this claim for the Board to assess appellant’s sleep disturbance symptom and whether it warrants a higher rating in the first instance.
17 R. at 271.
18 See D’Aries v. Peake, 22 Vet.App. 97, 107 (2008).
19 See Tadlock v. McDonough, 5 F.4th 1327, 1337-38 (Fed. Cir. 2021) (“Where additional findings of fact are necessary regarding mattes open to debate, the proper action is for the Veterans Court is to remand to the Board for
consideration of those facts in the first instance.”).
20 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.'” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot make up for shortcomings in the Board’s assessment.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons-or-bases errors), aff’d, 964 F.3d 1381 (Fed. Cir. 2020); Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this Court.”).

5
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the September 8, 2020, Board decision and REMANDS this matter for further proceedings
consistent with this decision.
DATED: October 6, 2021
Copies to:
Lewis C. Fichera, Esq.
VA General Counsel (027)

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