Veteranclaims’s Blog

February 10, 2011

Single Judge Application of Extraschedular, C.F.R. 3.321, Thun v. Peake, 22 Vet.App.

Filed under: Uncategorized — Tags: , — veteranclaims @ 4:44 pm

Excerpt from Decision below:

“The Court agrees with the appellant’s argument that the Board should have
discussed the possibility of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(2010).
Section 3.321(b) provides that [r]atings shall be based as far as practicable,upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.
38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court concluded that ”
determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry.”

First, the Board or the regional office (RO) must determine whether the
evidence presents “such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Id. To do this, the Board or the RO must determine whether the criteria

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found in the rating schedule reasonably describe the claimant’s disability level and symptomatology.Id. If so, the claimant’s disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required.Id. However, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, the RO or the Board move to the second prong of the analysis. Id.
Under the second prong, the RO or the Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization.” Id. at 116. In sum, if the Board or RO determines that the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step – to determine whether, to accord justice, an extraschedular rating must be assigned. Id.
The Court has circumscribed its review in cases where the appellant did
not explicitly raise the issue of extraschedular rating below. “[T]he Court’s review is limited to the facts found by the Board and to a determination of whether, based on those facts, a claim for § 3.321(b)(1) extraschedular consideration was reasonably raised and should have been discussed.” Dingess v.
Nicholson, 19 Vet.App. 473, 499 (2006) (emphasis added). Although it does
not appear as though the appellant ever specifically asked the Board to consider § 3.321(b), she has repeatedly referred to difficulties that her condition causes her with employment. See R. at 343 (appellant’s May 2006 VA Form 9, which includes her statement that pain and mobility from her disability “impact me on a daily basis, and also at my present place of employment”); 370 (appellant’s July 2005 NOD in which she states that her bilateral heel spurs/arch collapse “has impacted me greatly requiring me to terminate present employment and seek employment which would allow me to be off my feet due to intermittent pain and locking”). The appellant is currently in receipt of a noncompensable disability rating under DC 7256, flatfoot, aquired. R. at 10. This rating is appropriate for a mild
condition with “symptoms relieved by built-up shoe or arch support.” 38 C.F.R. 4.71a, DC 5276 (2010). This rating code has been assigned by analogy, and the Court recognizes that rating by analogy is not an exact science. See

3

Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (recognizing that a
disability rated under an analogous rating code will not show all objective criteria of the analogous rating). However, it is not clear that the noncompensable disability rating assigned to the appellant is intended to cover the
interference with employment that she has described throughout the course
of her claim, or that the disability would not have an average impairment to earning capacity.

Further complicating the matter is that the Board’s decision contains no discussion regarding the appellant’s employment impairment due to this condition. The Court holds that the record reasonably raised the possibility of an extraschedular evaluation pursuant to § 3.321(b), and it was error for the Board not to consider
such an evaluation.

====================================================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2040
ROBIN L. GREENE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Robin L. Greene, through counsel, appeals
a March 10, 2008, Board of Veterans’ Appeals (Board) decision in which the Board
denied her claim for a compensable disability evaluation for bilateral heel spurs/arch collapse for any period from May 1, 2004. Record (R.) at 12. 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). Because the Board failed
to discuss a reasonably raised issue of record, the Court will vacate the Board’s decision and remand the matter for further proceedings.
The appellant had active service from April 1982 to April 2004. R. at 504-
05. In May2005, she was diagnosed with heel spurs and pes planus. R. at 398. In June 2005, she was awarded entitlement to service connection for bilateral heel spurs/arch collapse and assigned a noncompensable disability rating, effective May 1, 2004. R. at 385-92. In July 2005, she filed a Notice of Disagreement (NOD), arguing in essence that she was entitled to a compensable disability rating for this condition. R. at 370.
In the decision on appeal, the Board determined that the appellant was not
entitled to a compensable disability evaluation for her service-connected bilateral heel spurs/arch collapse. R. at 12. Relying on the results of a May 2005 VA medical examination, the Board found that the appellant’s condition was mild and did not give rise to a compensable disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276 (2007). R. at 11.
The appellant raises several arguments on appeal. First, she contends that
the Board failed to comply with its duty to assist by failing to obtain records she had requested. Appellant’s Brief (Br.) at 4-6. Next, she asserts that the Board relied on an inadequate medical examination. Id. at 6-8. She argues that the Board failed to consider the possibility of evaluating her condition under a
rating code other than DC 5276, and that the Board should have considered
assigning an extraschedular evaluation. Id. at 8-9. She also appears to argue that the Board improperly characterized her condition as “mild.” Id. at 10. The Secretary rebuts these contentions and argues that the Court should affirm the Board’s decision. Secretary’s Br. at 12.
The Court agrees with the appellant’s argument that the Board should have
discussed the possibility of an extraschedular evaluation pursuant to the provisions of38C.F.R. §3.321(b)(2010).
Section 3.321(b) provides that [r]atings shall be based as far as practicable,upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court concluded that ”
determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry.”
First, the Board or the regional office (RO) must determine whether the
evidence presents “such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Id. To do this, the Board or the RO must determine whether the criteria

2

found in the rating schedule reasonably describe the claimant’s
disability level and symptomatology. Id. If so, the claimant’s disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required.Id. However, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, the RO or the Board move to the second prong of the analysis. Id.
Under the second prong, the RO or the Board must determine whether the
claimant’s exceptional disability picture exhibits other related factors such as ”
marked interference with employment” and “frequent periods of hospitalization.” Id. at 116. In sum, if the Board or RO determines that the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference
with employment or frequent periods of hospitalization, the case must be
referred for completion of the third step – to determine whether, to accord justice, an extraschedular rating must be assigned. Id.
The Court has circumscribed its review in cases where the appellant did
not explicitly raise the issue of extraschedular rating below. “[T]he Court’s review is limited to the facts found by the Board and to a determination of whether, based on those facts, a claim for § 3.321(b)(1) extraschedular consideration was reasonably raised and should have been discussed.” Dingess v.
Nicholson, 19 Vet.App. 473, 499 (2006) (emphasis added). Although it does
not appear as though the appellant ever specifically asked the Board to consider § 3.321(b), she has repeatedly referred to difficulties that her condition causes her with employment. See R. at 343 (appellant’s May 2006 VA Form 9, which includes her statement that pain and mobility from her disability “impact me on a daily basis, and also at my present place of employment”); 370 (appellant’s July 2005 NOD in which she states that her bilateral heel spurs/arch collapse “has impacted me greatly requiring me to terminate present employment and seek employment which would allow me to be off my feet due to intermittent pain and locking”). The appellant is currently in receipt of a noncompensable disability rating under DC 7256, flatfoot, aquired. R. at 10. This rating is appropriate for a mild
condition with “symptoms relieved by built-up shoe or arch support.” 38 C.F.R. 4.71a, DC 5276 (2010). This rating code has been assigned by analogy, and the Court recognizes that rating by analogy is not an exact science. See

3

Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (recognizing that a
disability rated under an analogous rating code will not show all objective criteria of the analogous rating). However, it is not clear that the noncompensable disability rating assigned to the appellant is intended to cover the
interference with employment that she has described throughout the course
of her claim, or that the disability would not have an average impairment to earning capacity.

Further complicating the matter is that the Board’s decision contains no discussion regarding the appellant’s employment impairment due to this condition. The Court holds that the record reasonably raised the possibility of an extraschedular evaluation pursuant to § 3.321(b), and it was error for the Board not to consider
such an evaluation.
The Court will not, at this time, address other arguments and issues the
appellant raises that pertain to this Board decision. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)(holding 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”). On remand, the appellant is free to submit
additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that “[a] remand is meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded by the Court).
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the record, the Board’s March 10, 2008, decision is VACATED, and the matter is REMANDED for further proceedings consistent with this decision.

DATED: January 25, 2011
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Copies to:
Ralph G. Stiehm, Esq.
VA General Counsel (027)
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1 Comment »

  1. this is bull shit if the rating board screwed up and didnt give her the extrascdeule evaluation then the court should have given it to her why should she wait for the rating board to fuck up again she wasnot asking for 100% she just wanted it out of their hands and have someone else look at her claim and make a desision not them fuck the vet is what they do the administration of va sucks vietnam vet going through same shit

    Comment by GEORGE — November 4, 2012 @ 8:46 pm


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