Yancy: EXTRASCHEDULAR; COMBINED EFFECT OF MULTIPLE DISABILITIES

Yancy v. McDonald, 27 Vet.App. 484 (Feb. 26, 2016)

HELD: “[T]he Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.”

SUMMARY: Mr. Yancy was service connected for bilateral foot conditions, including pes planus, rated 10%, and hallux valgus of the left and right great toes, rated 0%. He appealed and the Board ultimately awarded a 30% rating for his bilateral pes planus under DC 5276. The Board also denied a compensable rating for his hallux valgus, finding that he did not meet the criteria for a compensable rating under DCs 5277 through 5284, and found that referral for extraschedular consideration was not warranted.

On appeal, Mr. Yancy argued that the Board failed to adequately explain why he was not entitled to higher or additional disability ratings under DC 5281 (for hallux rigidus) or DC 5284 (for “foot injuries, other”), and failed to properly assess whether referral for extraschedular consideration was warranted.

The Court agreed. DC 5281, for “hallux rigidus, unilateral, severe,” requires the condition to be rated as “severe hallux valgus under DC 5280.” The Board determined that Mr. Yancy was not entitled to a rating under DC 5281 because “it found that he had not been diagnosed with hallux rigidus.” However, the record contained a diagnosis of “hallux valgus et rigidus on both sides” that the Board failed to address. Because of this, the Court found the Board’s reasons or bases inadequate and remanded for the Board to discuss whether this evidence contains a diagnosis of hallux rigidus and, if so, whether it is severe enough to warrant a compensable rating.

The Court similarly found that the Board failed to adequately explain its denial of an evaluation under DC 5284, the DC for “foot injuries, other.” The Court noted that it had recently considered the word “other” in that DC in Copeland v. McDonald, 27 Vet.App. 333, 337-38 (2015). In this case, the Court turned its attention to the word “injury,” and held that “the plain meaning of the word ‘injury’ limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions.” The Court found that Mr. Yancy “has been diagnosed with conditions not explicitly listed in the rating schedule,” and that the Board failed to discuss whether those “unlisted conditions could be rated by analogy pursuant to DC 5284.” The Court thus remanded for the Board to address this question.

Finally, the Court found that the Board failed to adequately explain its extraschedular determination in light of the Federal Circuit’s holding in Johnson v. McDonald, 462 F.3d 1362 (Fed. Cir. 2014), which states that “§ 3.321(b)(1) provides for extra-schedular consideration based on the collective impact of multiple disabilities.” The Court first discussed the three-part extraschedular analysis required by Thun v. Peake, 22 Vet.App. 111, 115 (2008), which requires adjudicators to refer a case for extraschedular consideration if (1) the evaluation in the rating schedule does not contemplate the severity of the claimant’s disability level or his/her symptoms and (2) the claimant’s overall disability picture involves other factors such as “marked interference with employment” or “frequent hospitalizations.”

The Court stated that the “first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.” The Court added that an error on one element does not necessarily affect the analysis of the other element, and that if “either element is not met, then referral for extraschedular consideration is not appropriate.”

The Court held that “the Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.” In this case, Mr. Yancy acknowledged that he did not expressly raise the issue of extraschedular consideration to the Board. However, the Court found that the issue was reasonably raised by the record and that “the Board erred by failing to discuss the combined effects of Mr. Yancy’s disabilities in its analysis.”

FULL DECISION

Sowers: MINIMUM COMPENSABLE RATING FOR PAINFUL JOINT

Sowers v. McDonald, 27 Vet.App. 472 (Feb. 12, 2016)

HELD: 38 C.F.R. § 4.59, which provides for a minimum compensable rating for a painful joint, is limited by the applicable diagnostic code and does not apply where that diagnostic code does not contain a compensable rating.

SUMMARY: Mr. Sowers was service connected for a right ring finger disability, and assigned a noncompensable disability rating under Diagnostic Code (DC) 5010-5230. He appealed this decision and the Board determined that (1) DC 5010 was not appropriate since there was no arthritis substantiated by x-rays; (2) the evidence did not establish ankylosis; (3) the appropriate DC, 5230, did not provide for a compensable rating – even for any limitation of motion; and (4) extraschedular consideration was not warranted.

On appeal to the Court, Mr. Sowers argued that he was entitled to a minimum compensable rating under 38 C.F.R. § 4.59, asserting that this regulation “is designed to add flexibility to the rating schedule.” He acknowledged that the assigned DC, 5230, does not provide a compensable rating, but argued that the DC for ankylosis of the finger, 5227, does provide for a compensable rating “where the disability equates to amputation.” He argued that VA should used that DC to “build up a rating” that would entitle him to a compensable rating under 38 C.F.R. § 4.59.

The Secretary argued that § 4.59 did not apply because DC 5230 only contains a 0% rating.

The Court acknowledged that the rating schedule contained “flexible” provisions, such as 38 C.F.R. § 3.321 (extraschedular evaluation), § 4.20 (analogous ratings), and § 4.27 (customizable DCs). However, the Court found that “these flexible provisions are limited by the rating schedule.” The Court also noted its recent holding in Petitti v. McDonald, 27 Vet.App. 415 (2015), which confirmed that § 4.59 “ensures that a veteran experiencing an ‘actually’ painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate DC to the joint involved.” The Court added that “Petitti emphasized that § 4.59 is not an independent provision that may be applied without an underlying DC: § 4.59 is read in conjunction with, and subject to, the DC.”

Because the assigned DC in question, DC 5230, only provides for a 0% rating for “any limitation of motion,” and “does not instruct that other DCs should be considered,” the Court found that § 4.59 would not allow for a compensable rating for a condition rated under this DC. The Court found that the specific language of DC 5230 “trumps the general intent in § 4.59 to compensate painful motion with at least the minimum compensable rating,” and held that “[b]ecause no impairment of motion warrants a compensable rating under DC 5230,” Mr. Sowers was not entitled to a compensable rating under this DC, even when DC 5230 is read in conjunction with § 4.59.

The Court rejected Mr. Sowers’ argument based on DC 5227, which provides a compensable rating based on ankylosis that approximates amputation, stating that “a claimant may not shop around among DCs to find a better deal.” The Court noted that such a proposal would lead to “absurd results” by creating a “de facto 10% disability rating for painful motion.” The Court thus held that “[s]ection 4.59 may intent to compensate painful motion, but it does not guarantee a compensable rating,” Instead, this regulation “employs conditional language that must be read in conjunction with the appropriate DC to be understood.”

The Court remanded the issue of extraschedular consideration to allow the Board to consider the “‘collective impact of all [his] disabilities’” (citing Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014)), which Mr. Sowers raised for the first time during his appeal to the Court.

FULL DECISION

Gazelle: SPECIAL MONTHLY COMPENSATION; COMBINED RATINGS

Gazelle v. McDonald, 27 Vet.App, 461 (February 2, 2016)

HELD: 38 U.S.C. § 1114(s) provides special monthly compensation (SMC) for veterans with one disability rated 100% and a separate disability or disabilities independently ratable at 60% or more. Where there are multiple additional disabilities, it is appropriate to use the combined ratings table, 38 C.F.R. § 4.25, to determine whether those disabilities are “ratable at 60% or more.” It is not appropriate to simply add the ratings together. 

SUMMARY: Mr. Gazelle was service connected for PTSD, rated 100% disabling. He also was service connected for conditions of the neck (20%), back (20%), left upper extremity radiculopathy (10%), and left lower extremity radiculopathy (10%). Under the combined rating table, his additional disabilities amounted to a 50% rating, and the RO thus denied SMC under 38 U.S.C. § 1114(s).

He appealed to the Court, arguing that his additional disability ratings should be added together and not combined. He argued that his position was supported by the plain language of the statute, by VA’s implementing regulation, and by the pro-veteran nature of the VA benefits scheme.

The Court disagreed. The Court first examined how section 1114(s) fit into the statutory scheme that included sections 1155 (authorizing the Secretary to create a rating schedule) and 1157 (allowing for the “combination” of ratings). Section 1114(s) requires (1) a single disability rated 100% disabling (i.e., NOT multiple disabilities that combine to a 100% rating) and (2) “additional service-connected disability or disabilities independently ratable at 60 percent or more.”

Mr. Gazelle argued that there was a distinction in the awards provided for in sections 1114(a) through (j) and (k) through (t) – specifically, that (k) through (t) require the veteran to have a disability rated as total. Because of this distinction, he argued that the combined ratings table only applies when a veteran does not have a disability already rated as total, and thus did not apply to subsections (k) through (t). The Court disagreed, finding that there was nothing in section 1114 that precluded the use of the combined ratings table to some subsections, but not others.

The Court rejected Mr. Gazelle’s argument that the word “independently” in the statute suggested that each additional disability are not only independent of the one condition already rated 100%, but also independent of each other. The Court found that this rationale would result in the additional disabilities not being “pooled” at all – and that this interpretation would result in VA requiring a single additional disability rated 60%. The Court found that this was not supported by the statute, which requires one condition rated 100% (or one condition rated total based on unemployability) and additional disability or disabilities rated 60% or more.

The Court added that the word “ratable” and “rated” are not interchangeable. The first criterion of section 1114(s) requires a disability “rated” 100% disabling; whereas the second criterion requires a disability or disabilities “ratable” at 60% or more. The Court stated that “the combined ratings table is the only method VA employs to rate multiple disabilities together . . . , and it was also the method employed when subsection 1114(s) was enacted.” The Court thus held that “[s]ubsection 1114(s)(1) allows for the possibility of multiple disability ratings being rated together at 60% or more. The only way multiple disabilities are ratable – or capable of being rated – in the VA system requires combining them using § 4.25.” 

FULL DECISION