Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 07-2557
DEWAYNE R. SCOTT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
GREENE, Chief Judge: Veteran Dewayne R. Scott appeals, through counsel, an August 9,
2007, decision of the Board of Veterans’ Appeals (Board) that denied a rating higher than 30% for
his VA service-connected ulcerative colitis. Record (R.) at 1-6. Mr. Scott argues that the Board
(1) failed to ensure that he received adequate 38 U.S.C. § 5103(a) notice and (2) erred by failing to
find that the facts of his case warranted referral of his claim for consideration on an extraschedular
basis. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990). For the reasons that follow, the Court will vacate the August 2007 Board decision and
remand the matter for readjudication consistent with this decision.
I. BACKGROUND
Mr. Scott served honorably in the U.S. Army from July 1988 to July 1992. R. at 12. In 1992,
he was awarded service connection for ulcerative colitis and assigned a 10% disability rating. R. at
19-25. That disability rating was increased to 30% in February 2000. R. at 51-53. In April 2001,
he was awarded service connection for ankylosing spondylitis, secondary to his ulcerative colitis.
R. at 55. In August 2001, Mr. Scott sought an increased disability rating, which a VA regional office
(RO) denied. R. at 70-74, 134-37. Mr. Scott appealed and in July 2004, the Board remanded the
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matter for the RO to comply with the provisions of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096, codified in part at 38 U.S.C. §§ 5102, 5103, and
5103A. R. at 163-66. In a July 2004 letter, VA informed Mr. Scott that he could submit evidence
in the form of medical reports, lay evidence, or his own observations showing that his ulcerative
colitis had increased in severity. R. at 168-74.
After further development, the Board denied an increased rating and Mr. Scott appealed to
the Court. In January 2007, the Court granted the parties’ joint motion to remand (JMR) the matter
for the Board to consider whether Mr. Scott’s case warranted referral for extraschedular
consideration. R. at 384-92. On remand, Mr. Scott underwent a VA medical examination, and in
its August 2007 decision, the Board denied a rating higher than 30% for his service-connected
ulcerative colitis (R. at 1-6). As part of that decision, the Board determined that the Secretary had
complied with his section 5103(a) duty to notify and that referral for extraschedular consideration
was not warranted because “it does not appear that the severity of the veteran’s ulcerative colitis rises
to a level of severity not already encapsulated by the 30[%] evaluation.” R. at 6.
II. APPLICABLE LAW AND ANALYSIS
A. Duty to Notify
Mr. Scott argues that the Secretary failed to notify him adequately of the evidence necessary
to substantiate his increased-rating claim in compliance with Vazquez-Flores v. Peake, 22 Vet.App.
37 (2008), argued, No. 08-7150 (Fed. Cir. Mar. 5, 2009). The Secretary contends that any notice
error is not prejudicial to Mr. Scott’s claim because the evidence of record demonstrates that he was
provided with information sufficient to enable a reasonable person to understand what evidence was
necessary to substantiate the claim.
The Board found that in January 2002 (R. at 88-90), July 2004 (R. at 168-74), and
March 2007 (R. at 454-57) letters, VA had provided Mr. Scott adequate section 5103(a) notice.
However, the Board may not rely on various unrelated predecisional and postdecisional
communications to find notice compliant with section 5103(a). See Mayfield v. Nicholson, 444 F.3d
1328, 1334-35 (2006). Thus, the Court agrees with Mr. Scott that the Board erred by relying an
these documents to find compliant notice. Having found error, the Court must “take due account of
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the rule of prejudicial error.” 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S.Ct. 1696, 1705
(2009) (holding that this Court may determine whether notice error is harmless under section
7261(b)(2) through “case-specific application of judgment” upon review of record); Vazquez-Flores,
22 Vet.App. at 46 (stating in context of asserted VCAA notice error that “reversal is not warranted
unless an error affects the essential fairness of the adjudication”). Here, the Court is satisfied that
any notice error is nonprejudicial.
Since filing his increased-rating claim in August 2001, Mr. Scott received from VA, prior
to the August 2006 Supplemental Statement of the Case (SSOC), the following: (1) a June 2002 RO
decision that specifically described the requirements for the next higher disability rating (60%) and
stated that he must show “numerous attacks a year with malnutrition” and that his health is “only fair
during remissions” (see 38 C.F.R. § 4.114, Diagnostic Code (DC) 7323 (2008); R. at 134); (2) a
September 2002 Statement of the Case (SOC) that informed Mr. Scott of the substance of the
regulations applicable to ulcerative colitis and included an explanation that the evidence of record
did not demonstrate that he met the criteria for a rating higher than 30% (R. at 143-48); and (3) a
July 2004 VCAA notice letter stating that Mr. Scott could submit medical or lay evidence or his own
personal statements showing that his disability had become worse, and explaining the Secretary’s
duties to notify and assist him with the adjudication of his claim (R. at 168-89, 172-73). Thus, Mr.
Scott was provided sufficient information such that a reasonable person would have known how to
substantiate his increased-rating claim. Dingess v. Nicholson, 19 Vet.App. 473, 495 (notice error
is nonprejudicial where it is demonstrated that reasonable person could be expected to understand
from notice what was needed to substantiate claim). Further, in June 2004, Mr. Scott, through his
then representative, submitted a brief in which he contended that his disability picture more nearly
approximated a 60% rating because his “near-constant abdominal distress in the form of nausea,
tenderness, and cramping relates his health as ‘fair’ during periods of remission.” R. at 159; see
Vazquez-Flores, 22 Vet.App. at 48 (“Actual knowledge is established by statements or actions by
the claimant or the claimant’s representative that demonstrate an awareness of what was necessary
to substantiate his or her claim.”); see also Overton v. Nicholson, 20 Vet.App. 427, 438 (2006)
(communications from claimant and his counsel to VA are factors to consider when determining
whether claimant had meaningful opportunity to participate effectively in processing of claim).
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Accordingly, the Court is persuaded that he was afforded a meaningful opportunity to participate in
the adjudication of his claim, that the process was essentially fair, and any notice error was therefore
nonprejudicial. Id.
B. Extraschedular Consideration
For individual claims presenting exceptional circumstances, VA has authorized the
assignment of extraschedular ratings and provided the following guidance:
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) (2008).
In Thun v. Peake, this Court held that the determination of whether a claimant is entitled to
an extraschedular rating is a three-step inquiry. 22 Vet.App. 111, 115 (2008). The first step is to
determine whether the “evidence before VA presents such an exceptional disability picture that the
available schedular evaluations for that service-connected disability are inadequate.” Id. If the
adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to
“determine whether the claimant’s exceptional disability picture exhibits other related factors,” such
as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally,
if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer
the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension
Service for a determination of whether an extraschedular rating is warranted. Id. The Board’s
determination of whether referral for extraschedular consideration is appropriate is a finding of fact
that the Court reviews under the “clearly erroneous” standard of review. Id. at 115. As with all
matters, a Board decision concerning referral for extraschedular consideration must include a written
statement of the reasons or bases for its findings and conclusions on all material issues of fact and
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law presented on the record. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
(1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
In concluding that a 30% schedular evaluation was adequate to rate Mr. Scott’s serviceconnected
ulcerative colitis, the Board stated:
Moreover, the Board finds no evidence of an exceptional disability picture. The
veteran has not required hospitalization due to his ulcerative colitis . . . . [T]he
veteran reported during his March 2007 examination that he had not worked since
July 2006, and noted in correspondence dated in June 2007 that he had appealed three
prior work dismissals due to extensive absenteeism. However, it is evident from the
opinion of the March 2007 VA examiner that this work interference is not due only
to his ulcerative colitis, but to other disorders, to include ankylosing spondylitis.
R. at 5-6. Mr. Scott argues that the Board’s decision not to refer his case for extraschedular
consideration on the basis that the acknowledged interference with his employment was due to both
service-connected and non-service-connected disabilities violates the Court’s holdings in Howell v.
Nicholson, 19 Vet.App. 535 (2006) and Mittleider v. West, 11 Vet.App. 181 (1998).
Howell and Mittleider provide that when a claimant has both service-connected and nonservice-connected disabilities, the Board must discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. See Howell,19 Vet.App. at 540; see also Mittleider, 11 Vet.App. at 182 (application of benefit of the doubt
doctrine requires Secretary to attribute inseparable disabilities to special monthly compensation claimant’s service-connected disability). The Secretary contends that Mittleider and Howell are not
relevant to the instant case because those cases concern separating the effects of service- and nonservice-
connected conditions on employment and here, all of the conditions effecting Mr. Scott’s
employment are service connected.
However, a review of the March 2007 VA examination report relied upon by the Board
reveals that Mr. Scott presented with complaints of “generalized pain to almost all the joints of the
body including the fingers, wrists, elbows, shoulders, hips, knees, and ankles.” R. at 448. At that
time, the examiner opined that the joint pain was secondary to Mr. Scott’s colitis and that “because
of the problems associated with the colitis and the problems to the back and associating also the
multiple joint pain[,] this veteran is not going to be employable secondary to the service-connected
problems.” R. at 449. Indeed, the Court notes that in April 2001, Mr. Scott was awarded service
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connection for ankylosing spondylitis, secondary to his ulcerative colitis. R. at 55. Thus, the
Board’s reasoning that Mr. Scott’s work was interfered with due to disorders other than his ulcerative
colitis is not sound as a review of the evidence indicates that his ankylosing spondylitis is indeed
attributable to his service-connected ulcerative colitis.
Further, the Board’s analysis failed to discuss whether the criteria found in the rating schedule
for the disability rating assigned to Mr. Scott throughout the adjudication of his claim adequately
addressed the level of severity of his disability picture. See Thun, 22 Vet.App. at 115 (in
adjudicating extraschedular rating VA must compare level of severity of claimant’s disability picture
with criteria found in rating schedule for that disability). Ulcerative colitis is a chronic, recurrent
ulceration in the colon. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 390 (31st ed. 2007). A
30% disability rating is assigned to ulcerative colitis that is “[m]oderately severe; with frequent
exacerbations.” 38 C.F.R. § 4.114, DC 7323. A 60% disability rating is assigned to ulcerative colitis
that is “[s]evere; with numerous attacks a year and malnutrition, the health only fair during
remissions.” Id. The Board decision contains no discussion of whether the joint pain experienced
by Mr. Scott, and discussed by the May 2007 VA examiner, is contemplated by the rating schedule
or whether that symptomatology creates an exceptional disability picture. See Thun, 22 Vet.App.
at 115 (in determining appropriateness of referral for extraschedular rating, “if the [rating] criteria
reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability
picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore
adequate, and no referral is required.”). Only after VA has determined that the schedular evaluation
does not adequately contemplate the level of Mr. Scott’s disability and symptomatology should there
be a determination of whether his disability picture exhibits other related factors such as those
provided by the regulation as “governing norms.” Id. at 116; see 38 C.F.R. § 3.321(b)(1) (related
factors include “marked interference with employment” and “frequent periods of hospitalization”).
Although when an “increase in the disability rating is at issue, the present level of disability
is of primary concern,” Francisco v. Brown, 7 Vet.App. 55, 58 (1994), “staged ratings are
appropriate for an increased-rating claim when the factual findings show distinct time periods where
the service-connected disability exhibits symptoms that would warrant different ratings.” Hart v.
Mansfield, 21 Vet.App. 505, 510 (2007); cf. McClain v. Nicholson, 21 Vet.App. 319, 323 (2007)
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(Board finding that veteran had disability “at some point during the processing of his claim,”
satisfied service-connection requirement for manifestation of current disability). Thus, the Board
was required to review Mr. Scott’s disability picture throughout the adjudication of his increasedrating
claim, since August 2001, and determine whether an extraschedular rating was appropriate
at any point during the pendency of his claim. Accordingly, the Board’s decision that referral for
extraschedular consideration is not warranted is not supported by an adequate statement of reasons
or bases and remand of the matter is required. See Thun, Hart, Allday, and Gilbert, all supra.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties’ pleadings,
the August 9, 2007, Board decision is VACATED and the matter is REMANDED to the Board for
readjudication.
DATED: May 29, 2009
Copies to:
Allan T. Fenley, Esq.
VA General Counsel (027)
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