Veteranclaims’s Blog

June 6, 2014

Single Judge Application; Carter,___Vet.App. at ___, 2014 WL 2050843; Joint Remand

Excerpt from decision below:

“In Carter, the Court held that, when an attorney agrees to a joint motion for remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion . . . and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed. Carter,___Vet.App. at ___, 2014 WL 2050843 at *8. The Court further held that “the parties must give clear direction to the Board of the errors that they agree are raised by the record and specify what further action the Board must take with respect to the claim.” Id. at *12. The Court has previously instructed attorneys, for both the Secretary and appellants , to “say[] what [they] mean[] and mean[] what [they] say.” Robinson v. Peake, 21 Vet.App. 545, 554 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).”

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“In fact, the parties restricted the issues returned to the Board when they requested that the Board vacate the April 2010 Board decision only “to the extent explained herein.” See R. at 224. If Mr. Smith believed that the Board’s selection of a diagnostic code was improper, that issue could have been explicitly raised within the four corners of the joint motion for remand. See Carter. __Vet.App. at__, 2014 WL 2050843 at *12. slip op. at 17 (stating that “remands merely for the sake of remands . . .  cause unnecessary delay, waste scarce resources, and are harmful to the entire system, including to the Court, VA, and, most importantly, the veteran.”) (emphasis added).

====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-2618
JOE F. SMITH , APPELLANT,
V.
SLOAN D. GIBSON,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Joe F. Smith appeals through counsel a June 22, 2012, Board
of Veterans’
Appeals (Board) decision that declined to refer his claim for benefits for
bilateral claw foot for
consideration of an extraschedular disability rating.1
Mr. Smith’s Notice of Appeal was timely, and
the Court has jurisdiction to review the Board decision pursuant to 38 U.S.
C. § 7252(a). Neither
party requested oral argument, nor have the parties identified issues that
they believe require a
precedential decision of the Court.
On September 30, 2013, the Court stayed proceedings of Mr. Smith’s appeal
pending the
resolution of CarterNext Hit v. Shinseki, __Vet.App.__ No. 12-0218, 2014 WL
2050843 (May 20, 2014),
before a panel of this Court, which has now been resolved. Accordingly,
the Court will lift the stay
Because Mr. Smith raises no arguments in his opening brief regarding the
Board’s decision to decline to refer
his claim for benefits for bilateral claw foot for consideration of an
extraschedular disability rating, the Court need not
address it. See Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999); Grivois
v. Brown, 6 Vet.App. 136, 138 (1994)
(holding that issues or claims not argued on appeal are considered
abandoned). The Board also remanded Mr. Smith’s
claim for VA benefits for a cervical spine disorder, and that claim is
therefore not before the Court at this time. See
38 U.S.C. § 7266(a) (stating that the Court reviews only final decisions
of the Board); see also Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a
final decision that may be appealed (citing
38 C.F.R. § 20.1100(b) (1999))).
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of proceedings and consider this appeal on the merits. Because the Board
did not err in failing to
consider an alterative diagnostic code, the Court will affirm the June
2012 Board decision.
I. FACTS
Mr. Smith served on active duty in the U.S. Marine Corps from October 1973
to October
1975.
In April 1990, Mr. Smith filed a claim for disability benefits for a
bilateral foot disability.
In July 1990, a VA regional office denied Mr. Smith’s claim. He did not
appeal that decision and it
became final.
In May 1993, Mr. Smith requested to reopen his claim for benefits for a
bilateral foot
disability based on new and material evidence. In September 1996, Mr.
Smith underwent a VA
medical examination. After reviewing service treatment records and
performing a physical
examination, the examiner noted that Mr. Smith’s “feet have high arches
and clawed toes.” Record
(R.) at 2569. In July 1997, the regional office granted Mr. Smith’s claim
and assigned a 30%
disability rating for bilateral claw feet. Mr. Smith filed a Notice of
Disagreement with that decision
and ultimately appealed to the Board.
After further development, in April 2010 the Board issued a decision,
assigning Mr. Smith
a disability rating of 50% for bilateral claw feet, pursuant to 38 C.F.R. §
4.71a, Diagnostic Code
5278 (claw foot). R. at 263. A 50% disability rating is the maximum
possible schedular rating under
Diagnostic Code 5278. Thereafter, Mr. Smith appealed to the Court.
In September 2010, the Court granted the parties’ negotiated joint motion
for remand. In the
joint motion, the parties agreed, among other matters not currently on
appeal, that the Board
provided inadequate reasons or bases for determining that Mr. Smith was
not entitled to referral for
consideration of an extraschedular disability rating for his bilateral
claw foot condition. R. at 222.
Mr. Smith was represented by the same law firm and attorneys that
currently represent him in the
appeal before the Court.
In June 2012, the Board issued the decision on appeal, finding that Mr.
Smith was not
entitled to referral for consideration of an extraschedular disability
rating for his bilateral claw feet.
This appeal followed.
2

II. ANALYSIS
Mr. Smith raises one issue on appeal: The Board erred in failing to
consider whether his bilateral claw foot disorder should be rated on a schedular basis pursuant to diagnostic code 5284, an issue not previously addressed by the Board. This argument is not persuasive.
In Carter, the Court held that, when an attorney agrees to a joint motion for remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion . . . and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed. Carter,___Vet.App. at ___, 2014 WL 2050843 at *8. The Court further held that “the parties must give clear direction to the Board of the errors that they agree are raised by the record and specify what further action the Board must take with respect to the claim.” Id. at *12. The Court has previously instructed attorneys, for both the Secretary and appellants , to “say[] what [they] mean[] and mean[] what [they] say.” Robinson v. Peake, 21 Vet.App. 545, 554 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
Here, a review of the record reveals the following crucial facts: (1) the
joint motion for
remand, as related to Mr. Smith’s claw foot disorder, clearly required the
Board to consider whether
Mr. Smith was entitled to a higher disabilityrating, on an extraschedular
basis, pursuant to 38 C.F.R.
§ 3.321(b)(1) (R. at 222); (2) Mr. Smith did not raise the issue of the
applicability of Diagnostic
Code 5284 to the Board on remand in 2012; (3) the argument that the Board
should have considered
diagnostic code 5284 was raised for the first time on appeal of the June
2012 Board decision; (4) the
Board thoroughly reviewed the record and sufficiently explained why Mr.
Smith’s claim was not an
exceptional case and was not entitled to referral for consideration of an
extraschedular disability
rating; and (5) Mr. Smith has been represented by the same counsel since
the April 2010 Board
decision, including the appeal of the April 2010 Board decision,
negotiation of the September 2010
joint motion for remand, and in this appeal.
Further, a review of the parties’ September 2010 joint motion for remand
reveals that they
agreed that the Board erred by failing to provide an adequate statement of
reasons or bases for its
determination that referral for extraschedular consideration was not
warranted. See R. at 222-24. In
3

fact, the sole focus of the joint motion for remand was entitlement to an
extraschedular disability rating with regard to Mr. Smith’s bilateral claw foot disability.2
There was no mention of a disagreement with the current diagnostic code under which his condition is rated nor any argument raised related to the proprietyof Mr. Smith’s schedular disability rating.
In fact, the parties restricted the issues returned to the Board when they requested that the Board vacate the April 2010 Board decision only “to the extent explained herein.” See R. at 224. If Mr. Smith believed that the Board’s selection of a diagnostic code was improper, that issue could have been explicitly raised within the four corners of the joint motion for remand. See Carter. __Vet.App. at__, 2014 WL 2050843 at *12. slip op. at 17 (stating that “remands merely for the sake of remands . . .  cause unnecessary delay, waste scarce resources, and are harmful to the entire system, including to the Court, VA, and, most importantly, the veteran.”) (emphasis added).
The Court again notes that “the parties must give clear direction to the Board of the errors
that they agree are raised by the record and specify what further action the Board must take with respect to the claim.”Id. In fact, the parties’ September 2010 joint motion for remand provided clear and specific instructions to the Board–that the Board must consider
whether Mr. Smith was entitled to an extraschedular disability rating. See Forcier v. Nicholson, 19 Vet. App. 414, 426 (2006) (holding that the parties must “state clearly the purpose of the remand and [] set forth detailed
directions to describe the action the Board should take upon remand.”). In
short, nothing in the
parties’ September 2010 joint motion for remand required or even hinted
that the Board was required
to readjudicate the issue of a schedular rating, including the selection
of an alternative diagnostic
code.
Finally, as noted above, Mr. Smith has been continuously represented bythe
same law firm,
and indeed the same lawyers from that firm, since his first appearance
before the Board in April
2010. Consequently, Mr. Smith had ample opportunity to raise this argument
to the Board on
remand, but chose not to do so. Mr. Smith instead chose to raise this
argument for the first time in
The Court notes that, although the heading of the relevant portion of
the joint motion for remand was “increased rating for bilateral claw feet,” the text that follows the heading refers only to 38 C.F.R. § 3.321(b)(1) and whether Mr. Smithis entitled to referral for consideration of an extraschedular rating for that disability. Accordingly, theCourt cannot
conclude that Mr. Smith raised a general argument regarding his schedular rating, and any argument on the part of counsel that he did would be disingenuous.
2
4

his opening brief. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir.
2000) (holding that the
Court has discretion to consider, refuse to hear, or remand arguments
presented to it in the first
instance). Because Mr. Smith was represented by counsel throughout the
entirety of his appeal, and
because he specifically requested (and received) a new Board decision
discussing the possibility of
referral for consideration of an extraschedular rating for his bilateral
claw foot disability, the Court
will not exercise its discretion to consider this newly raised argument.
In sum, the Court concludes
that, because Mr. Smith did not expressly raise this matter to the Board,
the Board did not err in not
considering it. See Robinson v Shinseki, 557 F.3d 1355, 1361 (Fed. Cir.
2009).
III. CONCLUSION
Upon consideration of the foregoing, the June 22, 2012, Board decision is
AFFIRMED.
DATED: June 4, 2014
Copies to:
Nicholas L. Phinney, Esq.
VA General Counsel (027)
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