Veteranclaims’s Blog

March 30, 2016

Single Judge Application; Extraschedular Evaluation; 38 C.F.R. § 3.321(b)(1)(2015); 38 C.F.R. §§ 4.45, 4.59; § 4.40 (Functional loss may be due . . . pain)

Excerpts from decision below:

“Disability evaluations are generally determined by applying the criteria in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2015). However, in “the exceptional case where the schedular evaluations are found to be inadequate,” the case may be referred for extraschedular evaluation. 38 C.F.R. § 3.321(b)(1)(2015). Extraschedular evaluation is warranted when (1) the established schedular criteria are inadequate to describe the severity and symptoms of the disability; (2) there are other indicia of an
exceptional or unusual disability picture, such as marked interference with employment or frequent
periods of hospitalization; and (3) an extraschedular evaluation award is “in the interest of justice.”
Thun v. Peake, 22 Vet.App. 111, 115-16 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) (outlining the “elements that must be established before an extraschedular rating can be awarded”); 38 C.F.R. § 3.321(b)(1). The Court reviews extraschedular referral determinations for “clear error” as set forth in 38 U.S.C. § 7261(a)(4). Thun, 22 Vet.App. at 115.

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

“However, the Board failed to discuss how those DCs, which consider, respectively, the existence of ankylosis and the degree to which wrist movement is limited, including factors described in 38 C.F.R. §§ 4.40, 4.45, and 4.59, 3 account for wrist symptoms the veteran is experiencing, particularly the required use of assistive devices such as wrist braces while at work and while at rest at night, R. at 366, 568, 944, 1414, and the need for dictation software, both at work and at school, R. at 568, 844, 1412.”

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

“Although the Board cited and referenced the “variety of ways in which the rating schedule contemplates functional loss,” it did not discuss how the rating schedule contemplates the symptoms that Mr. Brown experiences. Id. These symptoms include pain while the veteran is at rest and not using his wrist and thus appears unrelated to functional loss, R. at 1414 (pain while veteran is inactive in bed at night), see 38 C.F.R. § 4.40 (“[F]unctional loss may be due . . . pain, supported by adequate pathology and evidenced by
the visible behavior of the claimant undertaking the motion.”). ”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-4235
LARRY J. BROWN, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Larry J. Brown appeals through counsel a November 7, 2014,
Board of Veterans’ Appeals (Board) decision that, inter alia, declined to refer for extraschedular
evaluation service-connected left and right wrist degenerative arthritis from December 5, 2008.
Record (R.) at 2-12.1 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 to review the Board decision
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside
the November 7, 2014, Board decision with respect to the determination that referral for
extraschedular consideration was not warranted and remand that matter for further proceedings
consistent with this decision.
1 Because Mr. Brown makes no argument with respect to the Board’s denial of a schedular evaluation
in excess of 10% for service-connected left and right wrist degenerative arthritis from December 5, 2008,
the Court deems that matter abandoned and will dismiss the appeal of that claim. See Pederson v. McDonald,
27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued on appeal
and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same).
I. FACTS
Larry J. Brown served honorably in the U.S. Army from October 1983 to July 1988,
November 1992 to November 1996, and January 2003 to September 2003. R. at 52-57. During
service, he was treated for wrist pain after falling on several occasions and received a provisional
diagnosis of left wrist tenosynovitis in May 1994. R. at 824, 825-26, 827, 829, 830, 834-35.
In December 2008, Mr. Brown claimed service connection for a bilateral wrist disability. R.
at 1345-46. In April 2009, the VA regional office (RO) denied the claim, noting that service medical
records (SMRs) were unavailable, R. at 1272-83, and Mr. Brown filed a timely Notice of
Disagreement (NOD), R. at 1250-51.
In March 2010, a VA joints examiner diagnosed degenerative arthritis in both wrists, R. at
1159, and in July 2010, after locating the SMRs, the RO awarded service connection for right and
left wrist degenerative arthritis and assigned a noncompensable disability evaluation, effective
December 2008, R. at 1056-69.
In September 2010, Mr. Brown filed a timely NOD as to the assigned evaluations. R. at
1042-46. The RO continued the evaluations in a May 2011 Statement of the Case (SOC). R. at
998-1014. In June 2011, Mr. Brown disagreed with the SOC and requested a VA wrist examination.
R. at 992-96. The RO subsequently notified him that it had not received a VA Form 9 appeal and,
therefore, considered the June 2011 SOC disagreement to be an increased evaluation request. R. at
1481.
A July 2011 VA wrist examiner noted Mr. Brown’s report of constant left wrist burning,
aching pain and right wrist intermittent aching pain, as well as stiffness, weakness, and lack of
endurance in both wrists. R. at 943-47. The veteran experienced daily flareups precipitated by
shaking hands, typing, sweeping, mopping, brushing his teeth, lifting, intimacy, and twisting. Id. He
had been fitted for and provided with bilateral wrist splints during the previous year and needed to
wear a wrist brace on the left wrist at all times. Id. The wrist conditions interfered with typing,
writing, dressing, bathing, intimacy, and household chores. Id. Upon examination, there was no
objective evidence of pain or ankylosis. R. at 945. The impression was moderate right and moderate
to severe left degenerative changes in the carpal, radiocarpal, and distal ulnar joints. R. at 946.
2
In November 2011, the RO increased both wrist evaluations to 10% from July 2010. R. at
912-15, 924-26. Mr. Brown timely disagreed with the effective date of the increases and the assigned
evaluations, asserting that he had reported wrist pain at earlier VA examinations and that the
evaluation did not accurately reflect the severity of his wrist symptoms. R. at 905-07.
Mr. Brown reported “burning” wrist pain during a January 2012 primary care visit and was
prescribed a non-steroidal anti-inflammatory drug and recommended for a physical therapy
consultation. R. at 617-19. In February 2012, he explained that the pain in all his joints had become
more severe over the past few years. R. at 376. In December 2012, Mr. Brown reported “burning and
aching” bilateral wrist pain that made it difficult for him to pick up items. R. at 360.
During a January 2013 primary care visit, Mr. Brown complained of wrist pain and swelling
and requested new wrist splints. R. at 621. Later that month, he reported that all activities bothered
his wrists and he had to wear wrist braces, especially in bed. R. at 366. A physical examination noted
wrist tenderness, grinding, catching, and popping. Id. Later that month a physician opined that “[a]ny
and all activities seem to be causing him a lot of pain, soreness, and discomfort, and this is all a
result of the severe arthritis that he has in both wrists.” R. at 847. The physician noted that Mr.
Brown might be a candidate for surgical wrist fusion. R. at 847.
In February 2013, Mr. Brown submitted a letter from his work supervisor, the Wright
Patterson Air Force Base Chief of Logistics. R. at 844. The supervisor noted that he had observed
Mr. Brown rubbing his wrists in discomfort during meetings, that he appeared to be in pain every
day, and that he had difficulty shaking hands, writing, typing, tying his shoes, and other tasks. Id. As
a result of the wrist disability, he needed voice dictation software to perform computer-related duties.
Id.; see also R. at 840-41. Mr. Brown submitted a list of limitations he experienced due to his
bilateral wrist condition including: bathing, dressing, writing, typing, driving, shaking hands,
grabbing and holding things, washing dishes, cooking, cleaning, and grooming. R. at 845.
At a February 2013 Board hearing, Mr. Brown testified that the bilateral wrist condition
affected his ability to perform simple daily tasks such as bathing, tying his shoes, picking up a book,
and shaking hands. R. at 1412. It was extremely difficult for him to pick up an object as light as a
book or laptop. R. at 1414. Anything that required use of his hands caused extreme pain and
discomfort and sometimes his wrists seized up. R. at 1414-15. Mr. Brown reported excruciating pain
3
even when he was not engaged in any activity, and he therefore wore a wrist brace while inactive in
bed at night. R. at 1414.
At an April 2013 occupational therapy consult, Mr. Brown reported that he worked in an
administrative position and had increased pain when working for extended periods of time. R. at 625.
He was fit for bilateral wrist splints and instructed how to modify his activities and set up his work
station to attempt to minimize pain at work. Id. In December 2013, Mr. Brown displayed loss of
motion in flexion and extension and his grip strength was diminished. R. at 369. The physician
opined that he “would fully agree with any limitations that would be permanently placed on him as
a result of his significant arthritis present in the joints and loss of motion as well.” Id.
In January 2014, Mr. Brown underwent a general functional capacity evaluation. R. at
563-87. The examiner noted that the veteran worked full time in logistics at an Air Force base, a
position that required mostly computer activities. R. at 564. Mr. Brown reported increasing pain in,
inter alia, his wrists, and noted that he was unable to participate in activities requiring fine motor and
gripping hand function, such as typing, driving, holding books, and opening doors. R. at 566. Mr.
Brown stated that he used wrist braces during the day and occasionally at night and used dictation
software at work. R. at 568. He indicated that he had severe difficulty operating a computer due to
hand and finger pain; severe difficulty performing light house work due to hand, finger, and elbow
pain; moderate difficulty preparing meals due to difficulty manipulating cooking items; and
moderate difficulty bathing and grooming. R. at 572. After reviewing the January 2014 examiner’s
functional capacity test results and examination report, Mr. Brown’s personal physician opined that
Mr. Brown was only capable of doing light duty “due to the severity of his arthritis and multiple
problems, and certainly may require just sedentary duty as well.” R. at 371.
In November 2014, the Board issued the decision on appeal. R. at 2-14. It increased the
bilateral wrist evaluations to 10% effective December 5, 2008, and denied evaluations in excess of
10% thereafter. R. at 1-14. The Board also determined that referral for extraschedular consideration
was not warranted because the veteran’s disability picture was contemplated by the rating schedule
and the service-connected wrist disabilities did not cause marked interference with employment. R.
at 9-10. This timely appeal followed.
4
I. ANALYSIS
Mr. Brown argues that the Board provided inadequate reasons or bases for finding
extraschedular referral not warranted because it failed to (1) sufficiently compare the veteran’s wrist
symptoms to the criteria in the relevant diagnostic codes, (2) explain how the wrist symptoms did
not rise to the level of “marked interference with employment,” and (3) consider the collective
impact of all the veteran’s service-connected disabilities. Appellant’s Brief (Br.) at 8.2 The Secretary
argues that the decision should be affirmed because the Board provided adequate reasons or bases
as to why referral is not warranted and Mr. Brown has not demonstrated that his disability picture
is exceptional or unusual. Secretary’s Br. at 4. As discussed below, Mr. Brown’s reasons or bases
argument is persuasive.
Disability evaluations are generally determined by applying the criteria in VA’s Schedule for
Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155;
38 C.F.R. § 4.1 (2015). However, in “the exceptional case where the schedular evaluations are found
to be inadequate,” the case may be referred for extraschedular evaluation. 38 C.F.R. § 3.321(b)(1)
(2015). Extraschedular evaluation is warranted when (1) the established schedular criteria are
inadequate to describe the severity and symptoms of the disability; (2) there are other indicia of an
exceptional or unusual disability picture, such as marked interference with employment or frequent
periods of hospitalization; and (3) an extraschedular evaluation award is “in the interest of justice.” Thun v. Peake, 22 Vet.App. 111, 115-16 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) (outlining the “elements that must be established before an extraschedular rating can be awarded”); 38 C.F.R. § 3.321(b)(1). The Court reviews
extraschedular referral determinations for “clear error” as set forth in 38 U.S.C. § 7261(a)(4). Thun,
22 Vet.App. at 115.
In addition, every Board decision must include a written statement of reasons or bases for its
findings and conclusions on all material issues of fact and law; this statement must be adequate to
enable the claimant to understand the precise basis for the Board decision and to facilitate informed
2 Mr. Brown is currently in receipt of a 70% disability evaluation and is service connected for the
following disabilities: right and left knee arthritis, right and left ankle sprain, left foot metatarsalgia,
degenerative arthritis of the right and left wrists, and residuals of a right fifth finger fracture. R. at 606-08,
631-43.
5
review by this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The
Board must analyze the credibility and probative value of evidence, account for the persuasiveness
of evidence, and provide reasons for rejecting material evidence favorable to the claimant. Caluza
v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
In this case, the Board found schedular evaluations in excess of 10% under DCs 5214 and
5215 not warranted and the veteran does not challenge those determinations. R. at 9. However, the Board failed to discuss how those DCs, which consider, respectively, the existence of ankylosis and the degree to which wrist movement is limited, including factors described in 38 C.F.R. §§ 4.40, 4.45, and 4.59, 3 account for wrist symptoms the veteran is experiencing, particularly the required use of assistive devices such as wrist braces while at work and while at rest at night, R. at 366, 568, 944, 1414, and the need for dictation software, both at work and at school, R. at 568, 844, 1412.
Although the Board concluded that “[h]ere, the rating criteria, with consideration of
38 C.F.R. §§ 4.40, 4.45, and 4.59, reasonably describe the [v]eteran’s objective disability level and his subjective symptoms, and provide for higher ratings for more severe symptomatology than is
shown by the evidence,” it did not provide an adequate explanation. R. at 10. Although the Board
cited and referenced the “variety of ways in which the rating schedule contemplates functional loss,”
it did not discuss how the rating schedule contemplates the symptoms that Mr. Brown experiences. Id. These symptoms include pain while the veteran is at rest and not using his wrist and thus appears
unrelated to functional loss, R. at 1414 (pain while veteran is inactive in bed at night), see 38 C.F.R.
§ 4.40 (“[F]unctional loss may be due . . . pain, supported by adequate pathology and evidenced by
the visible behavior of the claimant undertaking the motion.”). His symptoms also include the need
3 Mr. Brown argues that the schedular evaluations assigned in this case only expressly contemplate
limitation of motion and ankylosis and do not consider functional loss and related factors. Appellant’s Br.
at 2. However, although DC 5215 may not expressly mention functional loss and other factors, those factors
are to be analyzed when assigning schedular evaluations under DC 5215. Deluca v. Brown, 8 Vet.App. 202,
206 (1995) (explaining that functional limitation of motion due to pain must be considered when determining
degree of joint disability under DCs for all musculoskeletal disabilities). That is what the Board did here. See
R. at 10 (“Here, the rating criteria, with consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59, reasonably
describe the [v]eteran’s objective disability level and his subjective symptoms . . . . For all musculoskeletal
disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example,
decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell [v.
Shinseki], 25 Vet.App. [32,] 37 [(2011)].”
6
for assistive devices. R. at 366, 568, 621, 842, 1414. Such a generalized statement as the Board gave,
as opposed to a particularized discussion of the material evidence favorable to the claim at hand,
does not provide adequate reasons or bases for declining extraschedular referral. See Caluza,
7 Vet.App. at 506.
Additionally, the Board’s conclusion that the wrist conditions did not cause marked
interference with employment simply because the veteran was able to use voice recognition software
is not supported by adequate reasons or bases. R. at 10. As Mr. Brown points out, although the use
of such software may reduce the need for Mr. Brown to use a computer keyboard, it does not appear
to eliminate that need, nor does it help Mr. Brown at times when he is unable to access a computer
or take notes aloud, such as during meetings. R. at 564, 570, 844 (employer’s statement about
witnessing the veteran’s “daily difficulties” in performing job duties despite the use of voice
recognition software).
Furthermore, although the Board found that “the medical findings are of greater probative
value than the [v]eteran’s lay allegations regarding the severity of his wrist disabilities,” it failed to
explain why it discounted the probative value of the veteran’s statements as to severity. R. at 9. The
Board did not provide any reason for this discounting and did not address the fact that numerous
medical examiners incorporated the veteran’s description of severity of symptoms into their
examination reports without questioning his statements. See, e.g., R. at 943-47 (July 2011 VA wrist
examination), 618 (January 2012 primary care visit), 376 (February 2012 medical progress note), 360
(December 2012 medical progress note), 366 (January 2013 follow up note), 847 (January 2013
follow up note), 625 (April 2013 occupational therapy consult). The Board also failed to address the
fact that Mr. Brown’s employer provided evidence supporting the veteran’s statements as to the type
and severity of his wrist symptoms. R. at 844.
Therefore, the Court is unable to determine how the Board arrived at the conclusion that the
medical findings–which the Board in its analysis apparently considered separate from the veteran’s
reports of symptoms on which many of those medical findings were based–were more probative than
the veteran’s statements about his wrist symptoms–statements that were supported by the veteran’s
employer’s letter, which the Board also failed to discuss. R. at 9; see Allday, 7 Vet.App. at 527;
Caluza, 7 Vet.App. at 506.
7
Accordingly, it is unclear how the symptoms and severity of Mr. Brown’s service-connected
wrist disabilities are contemplated by DC 5214 and DC 5215, even considering that §§ 4.40, 4.45,
and 4.59 and considerations of functional loss are incorporated into the DC 5215 discussion, such
that extraschedular referral is not warranted. R. at 9-10. The Board failed to provide adequate reasons
or bases for declining such a referral and remand is required. See Allday, 7 Vet.App. at 527; Caluza,
7 Vet.App. at 506; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the
appropriate remedy “where the Board has . . . failed to provide an adequate statement of reasons or
bases”).
On remand, Mr. Brown is free to submit additional evidence and argument, including the
arguments raised in his briefs to this Court as to marked interference with employment and the
collective impact of all his service-connected conditions, 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. §§ 5109B and 7112. A final decision by the Board
following the remand herein ordered will constitute a new decision that, if adverse, may be appealed
to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the
date on which notice of the Board’s new final decision is mailed. See Marsh v. West, 11 Vet.App.
468, 472 (1998).
III. CONCLUSION
Upon consideration of the foregoing, that part of the November 7, 2014, Board decision
determining that referral for extraschedular consideration was not warranted is SET ASIDE and the
matter is REMANDED to the Board for further proceedings consistent with this decision. The appeal
as to the remainder of the decision is DISMISSED.
DATED: March 28, 2016
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
8

Older Posts »

Create a free website or blog at WordPress.com.