Excerpt from decision below:
“Hepatitis C (or non-A, non-B hepatitis) that is nonsymptomatic is assigned a 0% disability rating. 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354 (2018). A 10% evaluation is warranted where the condition causes “intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12–month period.” Id. The rating schedule describes the escalating criteria that would warrant disability ratings of 20%, 40%, 60%, and 100%. Id. “
“the Board explained that the term “incapacitating episode” is defined in §4.114 as “a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.” R. at 12 (citing 38 C.F.R. § 4.114 Note (2)) “
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3423
FELTON WOODS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
KRAMER, Senior Judge: Appellant Felton Woods served on active duty in the U.S. Army from April 1971 to September 1972. Record (R.) at 556. He appeals, through counsel, a July 28, 2017, Board of Veterans’ Appeals (Board) decision that denied entitlement to a compensable rating for hepatitis C and to service connection for a headache disability and a disability manifested by pain and burning in the legs, shoulders, arms, and neck (pain disability).2 R. at 2-17. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the July 28, 2017, Board decision and remand the matters for further proceedings consistent with this decision.
1 Judge Kramer is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 06-19 (Apr. 10, 2019).
2 The Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder. R. at 17-20. The Court lacks jurisdiction over that matter, and it will not be addressed further. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
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I. ANALYSIS
A. Service Connection
Mr. Woods argues that, in denying his service-connection claims for headache and pain disabilities, the Board relied on an inadequate May 2014 VA examination. Appellant’s Br. at 14-18. Mr. Woods further argues that the Board failed to ensure compliance with its remand instructions because the May 2014 VA examination did not respond to the specific questions posed in the Board’s July 2012 remand instructions. Id. at 23-25. Finally, Mr. Woods argues that the Board statement of reasons and bases regarding the service-connection claims is inadequate because, among other reasons, the Board held that pain, alone, is not a compensable disability, a holding not in accordance with the holding in Saunders v. Wilkie, 886 F.3d 356 (Fed. Cir. 2018). Id. at 26.
The Secretary agrees that the May 2014 VA examination report does not respond to the questions posed in the Board’s July 2012 remand instructions and, therefore, that the examination report is not adequate and that the Board failed to ensure substantial compliance with the July 2012 remand. Secretary’s Br. at 13-14. On that basis, he concedes to remand. Id.
The Court accepts the Secretary’s concessions of error with respect to the adequacy of the May 2014 VA examination and compliance with the July 2012 remand instructions. Accordingly, remand is required. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one.”); Stegall v. West, 11 Vet.App. 268, 271 (1998) (a remand order by the Court or the Board imposes upon the Secretary a concomitant duty to ensure compliance with the terms of the remand); see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “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 need not at this time address Mr. Woods’s remaining arguments regarding his service-connection claims as they could not result in a remedy greater than remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curium order) (noting that the factual and legal context 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”).
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B. Hepatitis C
Hepatitis C (or non-A, non-B hepatitis) that is nonsymptomatic is assigned a 0% disability rating. 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354 (2018). A 10% evaluation is warranted where the condition causes “intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12–month period.” Id. The rating schedule describes the escalating criteria that would warrant disability ratings of 20%, 40%, 60%, and 100%. Id.
In the decision on appeal, the Board explained that the term “incapacitating episode” is defined in §4.114 as “a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.” R. at 12 (citing 38 C.F.R. § 4.114 Note (2)). The Board found that Mr. Woods had “not been prescribed bed rest as a result of his hepatitis C,” and, therefore, a compensable rating was not warranted on the basis of incapacitating episodes. R. at 15.
The Board further explained that all three enumerated symptoms—fatigue, malaise, and anorexia—must be present to warrant a compensable rating on that basis. R. at 12, 15. The Board conceded that there was evidence of intermittent fatigue and malaise, as well as evidence of weight loss. R. at 15-16. The Board noted that Dorland’s Illustrated Medical Dictionary (hereinafter Dorland’s) defines “anorexia” as “lack or loss of the appetite for food.” R. at 12 (citing DORLAND’S 97 (31st ed. 2007)). The Board cited several examples in the record where Mr. Woods denied appetite changes as evidence that, despite any periods of weight loss, he did not have anorexia. R. at 15. Therefore, the Board concluded, “a compensable rating for hepatitis C is unwarranted at any time.” R. at 16.
- Incapacitating Episodes
Mr. Woods argues that the Board erred in its evaluation of both theories of entitlement. With respect to incapacitating episodes, Mr. Woods observes that § 4.114 merely requires that his symptoms be severe enough to require bed rest, not that bed rest be prescribed by a physician. Appellant’s Brief (Br.) at 28. Therefore, he contends, the Board erred because it imposed a nonexistent requirement. Id.; see also Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (concluding that the Board “erred in applying a standard that exceeded that set forth in the relevant evaluation criteria”); Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) (same). He further contends that the portion of the May 2014 VA examination addressing his hepatitis C is inadequate because the
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examiner did not discuss whether certain symptoms represented manifestations of incapacitating episodes. Appellant’s Br. at 19.
Under Mr. Woods’s interpretation of § 4.114, determining the need for bed rest does not require a physician’s intervention. In other words, Mr. Woods contends that according to the regulation, a lay person is capable of determining whether bed rest is necessary. But Mr. Woods also argues that, without “discussion . . . by a medical expert” as to whether he had experienced incapacitating episodes—defined by the regulation to include bed rest—”the Board was left without sufficient information” to decide his claim. Id. (emphasis added). He does not explain why, if a lay person is capable of determining whether bed rest is necessary, the Board could not make a factual finding as to whether bed rest occurred without obtaining a medical expert opinion.
Ultimately, the flaw in Mr. Woods’s argument is that he interprets the governing regulation to mean that bed rest is a symptom capable of lay observation, yet fails to identify any evidence in the record demonstrating that he, in fact, experienced periods of bed rest. Thus, to the extent that he asserts that the Board erred in its application of the regulatory standard, or that the examiner erred in failing to address favorable evidence, such errors would be harmless; consequently, his argument must fail. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (stating that the rule of prejudicial error requires Federal courts to review cases for errors of law without regard to errors that do not affect the parties’ substantial rights); id. at 410 (noting that the appellant generally bears the burden of demonstrating prejudice on appeal); Hilkert v. West, 12 Vet.App. 149, 151 (1999) (en banc) (“An appellant bears the burden of persuasion on appeals to this Court.”), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). - Anorexia
Mr. Woods’s argument regarding anorexia is more successful. He asserts that “the Board failed to discuss evidence in favor of a finding that [he] has experienced” lack or loss of appetite. Appellant’s Br. at 28-29. Specifically, he asserts that the Board failed to address evidence of weight loss and of vomiting after eating. Id. at 28. The Secretary disputes this argument, noting that (1) the Board discussed Mr. Woods’s weight loss and (2) vomiting after eating is evidence that he had an appetite and, therefore, did not have anorexia. Secretary’s Br. at 20-21.
But the Secretary also acknowledges that the record includes evidence that Mr. Woods reported a decreased appetite. Id. at 21 (citing R. at 1165 (Nov. 2007 viral hepatitis treatment
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form)). The Board did not discuss this evidence. See R. at 15 (discussing Aug. 2008, Dec. 2010, May 2014, and June 2016 denials of appetite changes). The Secretary argues that the November 2007 record does not reflect “lack or loss of appetite,” but his post hoc rationale cannot substitute for the Board’s missing discussion of potentially favorable evidence. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (holding that “‘litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court”); see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (finding that the Board must account for and provide the reasons for its rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In light of the Board’s failure to discuss what the Secretary has identified as potentially favorable evidence in the record, remand is warranted, see Tucker, 11 Vet.App. at 374, and the Court need not at this time address Mr. Woods’s remaining arguments regarding his hepatitis C, see Best, 15 Vet.App. at 20.
C. Hearing Request
Finally, Mr. Woods argues that the Board failed to provide him with a hearing he requested in May 2008. Appellant’s Br. at 20-23. He further contends that, regardless of whether there was a pending May 2008 hearing request, the Board should have considered whether he had re-raised his request for a Board hearing—for the matters currently on appeal—in a May 2016 “informal hearing presentation” (IHP) prepared by his nonattorney representative. Id. at 21-23; see R. at 468.
As the Secretary notes, the May 2008 hearing request was submitted with Mr. Woods’s Substantive Appeal of a separate, unrelated issue (hypertension); therefore, the request does not reflect a request for a hearing in any of the matters presently on appeal. Secretary’s Br. at 22; see R. at 1139. Furthermore, on Mr. Woods’s May 2006 (pain disability) and November 2010 (hepatitis C) Substantive Appeals, he declined the opportunity for a Board hearing. See Secretary’s Br. at 22; R. at 925, 1313. The Secretary’s argument is persuasive.
Mr. Woods responds that his May 2008 hearing request should nonetheless be considered a hearing request for his hepatitis C because it was submitted the month after the April 2008 rating decision assigning a noncompensable rating for that disability. Reply Br. at 8. However, Mr. Woods did not initiate an appeal of his hepatitis C rating until October 2008. See R. at 936. Mr. Woods has not explained why a May 2008 request for a hearing should be construed as
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encompassing a request for a hearing on a matter that was not yet in appellate status. See Hilkert, 12 Vet.App. at 151. Consequently, the Court holds that Mr. Woods has not met his burden to persuade this Court that a May 2008 hearing request is pending for any issues in the present appeal.
To the extent that Mr. Woods contends that his May 2016 IHP should, itself, be construed as a Board hearing request, the Court will not, at this time, consider this argument. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (noting that the factual and legal context 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”). Moreover, under Cook v. Snyder, 28 Vet.App. 330, 343 (2017), claimants have “the right to request and receive a Board hearing for the purpose of submitting additional evidence after a remand from the Court,” provided the request is received within 90 days after the matter is remanded to the Board. If Mr. Woods still desires an opportunity for a Board hearing on any of the matters remanded in this decision, he will have the opportunity to request one on remand.
On remand, Mr. Woods is also free to submit any other additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109 and 7112 (requiring the Secretary to provide for “expeditious treatment” of claims remanded by the Board or the Court).
II. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s July 28, 2017, decision is VACATED, and the matters are REMANDED for further proceedings consistent with this decision.
DATED: June 13, 2019
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)