Veteranclaims’s Blog

July 18, 2021

Single Judge Application; service-connected cancer; Bailey v. Wilkie, 33 Vet.App. 188, 191 (2021) (holding that, under DC 7528, prostate cancer residuals may be assigned separate ratings and that formal claims for secondary service connection are not required if they are raised while VA is evaluating service-connected cancer);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-4241
JOHN R. STANCZAK, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Senior Judge: The appellant, John R. Stanczak, Jr., appeals through counsel a September 29, 2017, Board of Veterans’ Appeals (Board) decision that denied entitlement to a disability rating in excess of 30% for osteoarthritis of the left shoulder status post open reduction-internal fixation of acromioclavicular joint separation for the period after November 17, 2016. The Board granted entitlement to a 30% rating effective prior to November 17, 2016, for the appellant’s service-connected osteoarthritis of the left shoulder status post open reduction-internal fixation of acromioclavicular joint separation and entitlement to a 20% rating for post-operative scars of the left shoulder effective prior to November 17, 2016. R. at 1-25. The Court will not disturb these favorable findings. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority.”), aff’d in part, rev’d in part sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009).
Following the Court’s recent precedential holding in Long v. Wilkie, 33 Vet.App. 167 (2020), the appellant withdrew his arguments as to whether the Board “erred when it denied
1 Judge Schoelen is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 04-21 (Jan. 4, 2021).
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referral for extraschedular consideration of [his] left shoulder disability and erred when it remanded TDIU for further development but denied extraschedular referral for the [his] left shoulder disability.” See Appellant’s Notice of Withdrawal of Issue at 1. Accordingly, the Court finds that the appellant has abandoned his appeal of the Board’s decision as to these issues, and the Court will dismiss the appeal as to the abandoned issues. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
The Court is sympathetic to the appellant with respect to the delays he has experienced throughout multiple stays and a lengthy en banc process. As to the remaining issues on appeal, because the Board did not provide adequate reasons or bases for determining that a separate rating is not warranted for any left shoulder symptomatology associated with the appellant’s stomach or sleep problems, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision. The Court also remands to the Board for consideration in the first instance the issue of whether the appellant is entitled to special monthly compensation (SMC) based on his need for regular aid and attendance because of his service-connected left shoulder disability.
I. BACKGROUND
The appellant served honorably on active duty in the U.S. Army from September 1951 to September 1954. R. at 544. In August 1953, he suffered an in-service left shoulder injury requiring surgery. R. at 504-08. Following his active service, the appellant filed a claim for shoulder separation. R. at 2286-89. In August 1955, he was granted service connection for his left shoulder disability. R. at 2253-55. A second surgery in March 1965 allowed for a temporary assignment of a 100% disability rating, which was reduced to 10% effective May 1965. R. 2200.
In February 2001, the appellant filed a claim for an increased rating for his left shoulder disability. R. at 2137. In January 2003, VA increased his rating to 20%. R. at 1901-09. His left shoulder disability was characterized as osteoarthritis acromioclavicular secondary to acromioclavicular separation left side. Id. In October 2011, the appellant again filed a claim for an increased rating for the same condition. R. at 1747-53. This claim was denied in March 2012. R. at 1713-25. In April 2012, the appellant filed a Notice of Disagreement. R. at 1649-64. In December 2013, VA issued a Statement of the Case that denied an increase above 20% for the left shoulder disability. R. at 927-57. The decision also denied claims for service connection for a chest
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condition and bicep condition. Id. at 955-57. In January 2014, the appellant formalized his appeal to the Board. R. at 903-04. In February 2013, VA received a statement in support of claim. R. at 893-94. In October 2015, VA continued to deny the left shoulder, chest, and bicep condition claims. R. at 622-31.
The Board remanded the appellant’s claims in September 2016 for a new examination because the record contained lay and medical evidence suggesting worsening symptomatology. R. at 461-72. Additional lay evidence was received in October 2016. R. at 297-300. In November 2016, the appellant was reexamined. R. at 208-18. The examiner noted the appellant’s description of functional loss and range of motion (ROM) as “very limited ROM in left shoulder that significantly limits his ability to get dress[ed].” R. at 209. The examiner described the appellant’s inability to open doors with his left arm as resulting from limited ROM of his left shoulder. R. at 218.
In the decision on appeal, the Board denied a rating in excess of 30% for osteoarthritis of the left shoulder status post open reduction-internal fixation of acromioclavicular joint separation, effective after November 17, 2016. R. at 1-25. The Board also denied a rating in excess of 20% for post-operative scars of the left shoulder effective after November 17, 2016. Id. The Board finally denied entitlement to service connection for a left bicep disorder and entitlement to service connection a chest/muscle disorder and remanded the issue of entitlement to a total disability rating based on individual unemployability because of his service-connected disabilities (TDIU). Id.
II. ANALYSIS
The appellant, having withdrawn issues, has clarified that he rests on his two remaining arguments. See Appellant’s Notice of Withdrawal of Issue at 1. He argues that symptoms associated with manifestations of his left shoulder disability, namely, stomach problems as side effects from pain medication and difficulty falling and staying asleep, warranted consideration of separate ratings. Appellant’s Brief (Br.) at 8-11. He primarily relies on Esteban v. Brown for the proposition that here, the Board was obligated to address any stomach and sleep problems as potential separate ratings. 6 Vet.App. 259 (1994). He further identifies possible Diagnostic Codes (DCs) for the stomach and sleep related symptoms. See Appellant’s Br. at 9-10 (citing DCs in 38 C.F.R. §§ 4.97, 4.114, and 4.130); see also Reply Br. at 1 (citing 38 C.F.R. § 4.71a). He also
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argues that the Board failed to consider whether the lay and medical evidence of record reasonably raised the issue of SMC based on his need for regular aid and attendance. Id. at 16-17.
The Secretary responds that Esteban does not apply to the facts found; that the appellant has been assigned the highest possible rating for his left shoulder disability; and that the Board already considered, but found, that applying other DCs was not warranted. Secretary’s Br. at 7-8. He points to the appellant’s lay statements as proof of a lack of association between his service-connected left shoulder disability and his reported stomach problems. Id. at 9 (citing R. at 606). The Secretary further argues that the sleep disturbances are caused by pain, which is implicitly contemplated by the rating criteria. Id. (citing 38 C.F.R. §§ 4.40, 4.45, 4.59). The Secretary concludes that the appellant has failed to demonstrate plain error and that the record contains more than a plausible basis for the Board’s decision, and the Board thereby provided an adequate statement of reasons or bases for its decision. Id. at 10.
The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake, 21 Vet.App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court has jurisdiction to review whether the Board erred in failing to consider such theories, Barringer v. Peake, 22 Vet.App. 242, 244 (2008), and the Court reviews the Board’s factual findings, such as whether a claim has been reasonably raised, under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Robinson, 21 Vet.App. at 553.
Separate ratings for service-connected disabilities are warranted when “none of the symptom[s] for any . . . conditions [are] duplicative of or overlapping with the symptomatology of the other . . . conditions.” Esteban, 6 Vet.App. at 262. Recent caselaw further clarifies VA’s use of rating concepts such as separate ratings to comply with its duty to maximize benefits. See Morgan v. Wilkie, 31 Vet.App. 162, 164 (2019) (holding that before considering an extraschedular rating, schedular rating concepts – including secondary service connection, analogous ratings, ratings based on individual unemployability, special monthly compensation, and the ability to rate a single disability under multiple DCs without pyramiding – are critical components of the duty to maximize benefits and must be considered); see also Long, 33 Vet.App. at 175 (clarifying that extraschedular ratings are no different from their schedular counterparts to the extent that they are meant to compensate veterans only for service-connected disabilities; thus, consideration is not warranted for downstream effects that clearly lack a requisite and legally recognized nexus to
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service or to a service-connected disability); Bailey v. Wilkie, 33 Vet.App. 188, 191 (2021) (holding that, under DC 7528, prostate cancer residuals may be assigned separate ratings and that formal claims for secondary service connection are not required if they are raised while VA is evaluating service-connected cancer).
The Board errs when it fails to consider an issue reasonably raised by the record. Robinson, 21 Vet.App. at 553. The appellant is service connected for his left shoulder injury and assigned a 30% rating under DCs 5003-5201. See R. at 177. Here, the Board found that the appellant’s symptoms are fully contemplated by this rating. R. at 16. Although the Board did discuss whether referral for an extraschedular rating was warranted and found that the appellant’s symptoms are fully contemplated by the applicable rating criteria, the Board did not go far enough in its analysis and failed to address the applicability of separate ratings. See id. at 16-17. The Board limited its analysis to what it characterized as limitation of motion and subjective complaints of pain and functional loss. Id. The Board further described any mention of pain related to the left shoulder as fully contemplated in the rating criteria for all musculoskeletal disabilities. Id.
Here, both lay and medical evidence of record reasonably raised the issue of whether the Board should have addressed whether separate ratings were warranted for the additional symptoms of stomach problems and sleep problems. For example, in a June 2013 statement, the appellant clarifies that when visiting VA for a compensation and pension examination he answered “no” when asked whether he was in pain, but that this lack of pain was only temporary relief while on pain medication. R. at 1640. In a lay statement of record, he states that he minimizes the use of painkillers due to stomach problems. R. at 607. He also describes muscle pain in his shoulder that even medication “does not . . . remedy . . . during the night” and states that he is “awakened due to shoulder and neck pain several days a night.” Id. at 606. As for medical evidence, a July 2015 medical note addresses both the sleep and stomach symptoms when it reports chronic and mild shoulder pain and documents the stomach problems the appellant experiences when he uses pain medication. R. at 722.
Under Esteban VA must address any “excess” symptoms and whether the appellant’s conditions should be rated separately unless they constitute the “same disability” or the “same manifestation.” 6 Vet.App. at 261. The Court agrees with the appellant that the Board failed to consider the reasonably raised theory of entitlement to separate ratings because it considered only whether an extraschedular referral under Thun was warranted. See R. at 16-17; see also Thun v.
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Peake, 22 Vet.App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed Cir. 2009). The arguments the Secretary makes as to the stomach and sleep issues are, at best, post hoc, because the remaining arguments before the Court only address whether the Board failed to consider reasonably raised theories of entitlement. See Martin v. Occupational Health & Safety Comm’n, 499 U.S. 144, 156-57 (1999) (holding that litigating positions are not entitled to judicial deference when they are merely counsel’s “post hoc rationalizations” for agency action and are advanced for the first time on appeal).
The remaining issue before the Court is whether the Board erred when it failed to consider the reasonably raised issue of entitlement to SMC based on the need for regular aid and attendance because of the appellant’s service-connected disability. The appellant argues that remand is required for the Board to consider whether the appellant is entitled to SMC at the “L” rate.2 Reply Br. at 17. The Secretary maintains that the Board discussed and adequately analyzed the functional effects of the appellant’s limited range of motion based on his service-connected left shoulder disability and that the appellant has failed to meet his burden to identify evidence of the need for regular aid and attendance contemplated in 38 C.F.R. § 3.350(b).3 Secretary’s Br. at 20-21.
Consideration of entitlement to SMC is a critical component of VA’s duty to maximize benefits. See Morgan, 31 Vet.App. at 164. In assessing the left shoulder disability and its residuals, the Board discussed the November 2016 examination’s findings with a specific eye to whether his already service-connected left shoulder condition warranted a separate rating. R. at 11-12. But the Board failed to discuss other relevant evidence including a November 2015 VA medical record where the appellant was referred for evaluation of adaptive equipment to increase ease with his activities of daily living (ADL) relating to his left shoulder condition and a November 2015 lay statement where the appellant describes difficulty toileting by himself. See R. at 430-31; see also R. at 608. The medical record observed that without assistance the appellant has difficulty in the ADLs of feeding, putting on clothing, and using a toilet. Id. The Board also failed to discuss an April 2002 lay statement, specifically, the appellant’s statement that “I am requiring my wife’s
2 See generally 38 C.F.R. § 3.350(b) (“[S]pecial monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance).
3 Additionally, although the appellant, when citing a January 2015 record, failed to explain that there was a heightened need for assistance to use a toilet because of a right knee replacement surgery, the Secretary also failed to address other evidence not considered by the Board. See Appellant’s Br. at 16-17; see also Secretary’s Br. at 20; Reply Br. at 12-13.
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assistance more frequently in removing and putting on clothing.” R. at 2108. The Board erred when it failed to address the reasonably raised issue of entitlement to SMC that is apparent in the record. Therefore, the Court will remand the appellant’s claim.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court, the parties’ pleadings, and the appellant’s withdrawal of issues, the September 29, 2017, Board decision is VACATED, the appellant’s arguments that extraschedular consideration was warranted are DISMISSED, and the remaining issues are REMANDED for further proceedings consistent with this decision.
DATED: June 11, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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