Marvin O. Johnson v. Eric K. Shinseki , 26 Vet. App. 237 ( 2013 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1785
MARVIN O. JOHNSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued December 8, 2011 Decided March 27, 2013 )
Kenneth Carpenter, of Topeka, Kansas, whom R. Edward Bates, of Naperville, Illinois, was
on the brief for the appellant.
Shanti L. Hageman, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; and Nisha C. Hall, Deputy Assistant General Counsel, were on the brief,
all of Washington, D.C., for the appellee.
Before KASOLD, Chief Judge, and HAGEL, MOORMAN, LANCE, DAVIS, SCHOELEN,
PIETSCH, and BARTLEY, Judges.1
SCHOELEN, Judge, filed the opinion of the Court. MOORMAN, Judge, filed a concurring
opinion. KASOLD, Chief Judge, filed a dissenting opinion. DAVIS, Judge, filed a dissenting
opinion in which BARTLEY, Judge, joined.
SCHOELEN, Judge: Marvin O. Johnson appeals through counsel a May 14, 2010, Board
of Veterans' Appeals (Board) decision that denied (1) a disability rating in excess of 10% for
rheumatic heart disease, (2) a disability rating in excess of 10% for right knee disability, (3) disability
compensation benefits for diabetes mellitus on the basis of exposure to herbicides, and (4) reopening
1
Judge Greenberg did not participate in this matter because it was assigned for a full court decision and
conferencing was held prior to his appointment with the Court. See Court's INTERNAL OPERATING PROCEDURES, sec.
VII(b)(1)(B).
a claim for disability compensation benefits for hypertension. The Board granted the appellant a
separate 10% disability rating for instability of the right knee.2 The Board also remanded
Mr. Johnson's claim for an increased disability rating for a left knee disability and his entitlement
to a total disability rating based on individual unemployability (TDIU). Because the Board did not
reach a final decision on the remanded matters, the Court has no jurisdiction over them. See
Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir. 2005) (holding that the Court does not have
jurisdiction over remanded claims).
Mr. Johnson does not address the Board's denial of his claim for disability compensation
benefits for diabetes mellitus or the Board's determination that there was no new and material
evidence to reopen a claim for disability compensation for hypertension. Accordingly, Mr. Johnson
has abandoned any challenge to the Board's decision regarding these matters and the Court need not
address the Board decision with respect to these matters. Ford v. Gober, 10 Vet.App. 531, 535-36
(1997) (claims not addressed in appellant's pleadings are considered abandoned).
Although the appellant states that he is appealing the Board's findings that he is not entitled
to a disability rating in excess of 10% for right knee instability and an increased schedular rating for
right knee disability (degenerative changes), he makes no arguments challenging the Board's
determinations regarding the appropriate schedular rating for those conditions. Additionally,
Mr. Johnson makes no arguments challenging the Board's denial of a schedular rating in excess of
10% for rheumatic heart disease. The Board's determinations in this regard therefore will be
affirmed. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (stating that an appellant "must
plead with some particularity the allegation of error"), rev'd on other grounds sub nom.
Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per curiam order); Hilkert v. West, 12 Vet.App.
145, 151 1999 (en banc) (stating that the appellant bears the burden of persuasion on appeal to show
Board error).
2
The Board's grant of the separate 10% schedular rating for right knee instability is a favorable finding, which
the Court cannot disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) ("The Court is not permitted to
reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority.").
2
The appellant does contest the Board's determination that he was not entitled to
extraschedular rating consideration of his service-connected rheumatic heart disease and right knee
disability under 38 C.F.R. § 3.321(b)(1) (2012). In this regard, Mr. Johnson argues that the Board
failed to provide an adequate statement of reasons or bases for its conclusions that he is not entitled
to a referral for extraschedular consideration for his heart disease and right knee disability on either
an individual or on a collective basis. Because the Secretary's interpretation of 38 C.F.R.
§ 3.321(b)(1) as limiting extraschedular ratings to individual disabilities is not inconsistent with the
regulation or otherwise plainly erroneous, and the Board did not commit prejudicial error in its
analysis of whether to refer Mr. Johnson's heart and right knee disability for extraschedular
consideration on an individual basis, the Board's decision will be affirmed.
I. BACKGROUND
Mr. Johnson served in the U.S. Army from May 14, 1970, to December 23, 1971. Record
(R.) at 846. In March 2008, he filed a claim for increased disability ratings for his service-connected
disabilities, including rheumatic heart disease (then rated 10% disabling), and degenerative changes
of the right and left knee (each knee then rated 10% disabling). R. at 239.
On March 14, 2008, Mr. Johnson underwent a VA compensation and pension examination
of the joints. R. at 220-22. He informed the VA examiner that he had daily, constant pain in both
knees. R. at 220. He characterized the pain as an ache that occasionally became sharp, and he noted
that the pain was aggravated by walking, bending, climbing stairs, and standing. Id. He reported that
his knee disability interfered with walking and standing for long periods. Id. He took Tylenol for
the pain and occasionally used heat, ice, bilateral knee braces, and a cane to alleviate his pain. At
the time of the VA examination, Mr. Johnson reported that he was self-employed detailing cars.
R. at 221.
The examiner noted mild tenderness medially in the left and right knees. Id. Regarding the
right knee, the examiner noted that there was no deformity or swelling. R. at 221. There was full
extension of the right knee with mild pain, 0 to 105 degrees of flexion with mild pain medially, and
no laxity, instability, or crepitus. Range of motion testing did not produce weakness, fatigue, or
incoordination, and, with repetitive motion, there was no additional loss of range of motion of the
3
right knee. Id. The examiner noted that Mr. Johnson had a normal gait except for a slight limp
favoring the right knee. Id. X-rays showed mild arthritic changes in the right knee. R. at 222. The
examiner diagnosed "[b]ilateral knee degenerative joint disease," noting an impression of "minor
degenerative changes in the patellofemoral joints bilaterally." R. at 221-22.
On March 25, 2008, Mr. Johnson underwent a VA heart examination for his
service-connected rheumatic heart disease. R. at 217-18. The VA examiner concluded that there
was "no evidence of valvular heart disease, nor myocardial disease on physical examination and
certainly no symptoms or functional limitation." R. at 218.
On April 18, 2008, a VA regional office (RO) denied Mr. Johnson's claims and concluded
that he was not entitled to TDIU. R. at 197-208. Mr. Johnson appealed this decision to the Board.
R. at 36. On May 14, 2010, the Board issued the decision here on appeal. R. at 3-25. The Board
denied referral for extraschedular consideration of Mr. Johnson's heart disease and right knee
disorder.
II. ANALYSIS
A. Combination of Disabilities
Mr. Johnson contends that the plain language of the Secretary's regulation regarding
extraschedular evaluations requires the Secretary to consider both the disability picture presented by
an individual disability and by the service-connected disabilities collectively. In its decision, the
Board did not consider Mr. Johnson's entitlement to a referral for extraschedular consideration for
his disabilities on a collective basis but determined that Mr. Johnson was not entitled to a referral
for extraschedular consideration for either his right knee disability or his rheumatic heart disease
individually. The crux of the issue before the Court is whether § 3.321(b)(1) requires VA to consider
multiple service-connected disabilities on a collective basis. The Court reviews the interpretation
of statutes and regulations de novo. See 38 U.S.C. § 7261(a)(1); Lane v. Principi, 339 F.3d 1331,
1339 (Fed. Cir. 2003); Bradley v. Principi, 22 Vet.App. 280, 290 (2008).
Determining a statute's or a regulation's plain meaning requires examining the specific
language at issue and the overall structure of the statute. Gardner v. Derwinski, 1 Vet. App. 584,
586 (1991) (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1988)), aff'd sub nom.
4
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115, 118, (1994); see also
Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) ("Only by . . . full reference to the context of
the whole can the court find the plain meaning of a part."); Frederick v. Shinseki, 24 Vet.App. 335,
338 (2011). "On review, if the meaning of the regulation is clear from its language, then that is the
'end if the matter.'" Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner,
513 U.S. at 120).
Under the VA statutory scheme, veterans with disabilities from an injury or disease
contracted during active service and in the line of duty are entitled to service-connected disability
benefits. 38 U.S.C. § 1110; see Thun v. Peake, 22 Vet.App. 111 (2008), aff'd sub nom.
Thun v. Shinseki, 572 F.3d. 1366 (Fed. Cir. 2009). Under 38 U.S.C. § 501, Congress granted the
Secretary general rulemaking authority "to prescribe all rules and regulations which are necessary
or appropriate to carry out the laws administered by the Secretary." Additionally, Congress has
granted the Secretary authority to adopt and apply a schedule of disability ratings based on the
reduction in earning capacity from specific injuries or combination of injuries based on the average
impairments of earning capacity resulting from such injuries in civil occupations. See 38 U.S.C.
§ 1155. Pursuant to this authority, the Secretary has established a disability rating schedule that is
"used as a guide in the evaluation of disability resulting from all types of diseases and injuries
encountered as a result of or incident to military service." 38 C.F.R. § 4.1 (2012).
Once a particular disability has been found to be service connected, VA applies the criteria
established in diagnostic codes (DCs) contained in the rating schedule to assign a disability rating
that "represent[s] as far as can practicably be determined the average impairment in earning capacity
resulting from such diseases and injuries and their residual conditions in civil occupations."
38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet.App. 292, 296 (1991) (stating that the overall
purpose of the statutory and regulatory scheme governing VA compensation law is reflected in the
ratings schedule, which rates different mental and physical maladies based upon diminished earning
capacity to pay "compensation to veterans when they have, in honorable service to their nation,
suffered a loss that is reflected in the decreased ability to earn a living for themselves and their
families"); 38 C.F.R. § 3.321(a). The ultimate percentage of a disability rating assigned to a veteran
is "considered adequate to compensate for considerable loss of working time from exacerbations or
5
illnesses proportionate to the severity of the several grades of the disability." 38 C.F.R. § 4.1.
Generally, all disabilities, including those arising from "a single disease entity," are rated separately,
and then all of the individual ratings are combined using the table provided in 38 C.F.R. § 4.25(2012). See Esteban v. Brown, 6 Vet.App. 259, 261 (1994). It is thus clear under the VA disability
compensation system that VA assesses the appropriate schedular disability rating on a
disability-by-disability basis. See Martinak v. Nicholson, 21 Vet.App. 447, 451 (2007) (stating that
the disability rating schedule sets forth the terms and conditions under which disability compensation
is to be provided through a list of "[DC]s and rating tables applicable for a specific disease or
injury").
It is against this statutory and regulatory framework that VA promulgated 38 C.F.R. § 3.321,
which is entitled "General Rating Considerations."3 Subsection (a) of this regulation reiterates the
language of section 1155 and states that the disability rating schedule is used for evaluating, among
other things, the "degree of disabilities in claims for disability compensation." That section of the
regulation also reiterates that portion of section 1155 that explains that the disability rating schedule
3
38 C.F.R. § 3.321(a) and (b)(1) provide:
(a) Use of rating schedule. The 1945 Schedule for Rating Disabilities will be used for
evaluating the degree of disabilities in claims for disability compensation, disability and
death pension, and in eligibility determinations. The provisions contained in the rating
schedule will represent as far as can practicably be determined, the average impairment in
earning capacity in civil occupations resulting from disability.
(b) Exceptional cases--
(1) Compensation. Ratings 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.
6
"represents the average impairment in earning capacity in civil occupations resulting from disability."
Thus, subsection (a) of the regulation is consistent with the VA disability scheme, in which disability
ratings are assigned under the disability rating schedule to individual disabilities. See Esteban and
Martinak, both supra.
Subsection (b) is entitled "Exceptional cases." The first sentence of § 3.321(b)(1) reiterates
that disability ratings are based upon the average impairment of earning capacity and states that the
Secretary shall periodically readjust the disability rating schedule in accordance with experience.
The second sentence of subsection (b)(1) states that to "accord justice" to the "exceptional case
where the schedular evaluations are found to be inadequate," VA officials (in particular the "Under
Secretary of Benefits and the Director, Compensation Service"4) are authorized to approve an
"extra-schedular evaluation for impairments that are due to service-connected disability or
disabilities."
Mr. Johnson argues that the Board must consider referral for and, if referred, the Under
Secretary for Benefits or the Director, Compensation Service, must consider awarding, an
extraschedular rating based on the combined effect of all service-connected disabilities on a
claimant's "average earning capacity." Appellant's Brief (Br.) at 11-12; 38 C.F.R. §3.321(b)(1). His
argument appears to be based on the use of the plural nouns in phrases "schedular evaluations" and
"disability or disabilities" in subsection (b) (1). The Secretary argues that the use of the plural nouns
in phrases "schedular evaluations" and "disability or disabilities" is a recognition that a veteran may
receive extraschedular ratings for one or more individual disabilities, and therefore contends that the
plain language of the regulation does not require consideration of an extraschedular rating for the
combined effect of multiple service-connected disabilities.
The Court concludes, after a careful reading of the regulation, its context within the overall
statutory scheme, and consideration of the parties' arguments, that the regulation is subject to
competing meanings, and is ambiguous on this point. See Heino v. Shinseki, 683 F.3d 1372, 1379
4
The Secretary has advised the Court that, as of April 2011, the title of "Director of Compensation and Pension
Service" no longer exists, and that position has since been separated into two distinct positions: "Director of
Compensation Service" and "Director of Pension and Fiduciary Service." Secretary's Second Memorandum of Law, n.
1. Because this portion of the regulation and this particular case deal with compensation benefits, the Court will refer
to this position as "Director, Compensation Service."
7
(Fed. Cir. 2012) (the structure of a statute can demonstrate that a statute is ambiguous);
Otero-Castro v. Principi, 16 Vet.App. 375, 380 (2002) ("The basic principles that apply to
construing statutes apply equally to construing regulations." (citing Smith v. Brown, 35 F.3d at
1523)). Thus, it is not clear from the language of the regulation whether an extraschedular
evaluation is to be awarded solely on a disability-by-disability basis or on the combined effect of a
veteran's service-connected disabilities.
It is well established that if the meaning of a regulation is unclear from the language, the
Court should defer to the Agency's interpretation of its own regulation so long as it is not
inconsistent with the language of the regulation or otherwise plainly erroneous. Smith v. Nicholson,
451 F.3d 1344, 1349 (Fed. Cir. 2006) (citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997));
Mason v. Shinseki, 26 Vet.App. 1, 6 (2012); Tatum v. Shinseki, 24 Vet.App. 139, 142 (2010). The
U.S. Supreme Court has held that an agency's interpretation of its own regulations is entitled to
substantial deference by the courts. See United States v. Cleveland Indians Baseball Co., 532 U.S.
200, 202 (2001); Auer, 519 U.S. at 461-62; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994); Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 151(1991);
Udall v. Tallman, 380 U.S. 1, 16 (1965). This high degree of deference applies even when VA's
interpretation of a regulation is first advanced during litigation. Reizenstein v. Shinseki, 583 F.3d
1331, 1335 (Fed. Cir. 2009) (citing Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d
1352, 1364 (Fed. Cir. 2005)).
Further, when a court is interpreting an administrative regulation, it "must necessarily look
to the administrative construction of the regulation if the meaning of the words used is in doubt."
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). The administrative construction
becomes "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."
Id.; see also Haas v. Peake, 525 F.3d 1168, 1186 (Fed. Cir. 2008). In an effort to demonstrate that
he has interpreted the regulation as supporting a disability-by-disability construction, the Secretary
cites a provision in the current VA Adjudication Procedures Manual Rewrite ( MANUAL M21-1MR),
which states that a claim is to be submitted for extraschedular consideration under § 3.321(b)(1) "if
the schedular evaluations are considered inadequate for an individual disability." See MANUAL
M21-1MR, pt. III, subpt. iv, ch. 6, sec. B.5.c (emphasis added). The Secretary has interpreted his
8
regulation to apply only to individual disabilities and this interpretation is entitled to substantial
deference. Because the regulation here leaves in doubt whether extraschedular consideration may
be afforded on a disability-by-disability basis or based on the combined effect of multiple
service-connected disabilities, VA is entitled to apply its own construction to the ambiguous
regulation.5 See Thun, 572 F.3d at 1369 (deferring to the same M21-1MR provision as an
"authoritative interpretation" of § 3.321(b) regarding the RO and Board's authority to reject referral
for consideration of an extraschedular rating). This interpretation is entitled to substantial deference.
See Haas, supra (holding that the court should defer to VA's reasonable interpretation of a regulation
that is not inconsistent with the language of the regulation).
Indeed, the Secretary's disability-by-disability interpretation of § 3.321(b)(1) is consistent
with the statutory and regulatory scheme. As discussed above, under the VA disability compensation
scheme, disability ratings are assigned for each disability separately based on the level of severity
and the unique symptoms associated with the particular disability. Section 3.321(b) requires that
before an extraschedular evaluation is considered, VA must initially compare the level of severity
and the symptoms of a particular service-connected disability with the established criteria found in
the rating schedule for that disability. See § 3.321(b)(1); Thun, 22 Vet.App. at 115. If the rating
criteria reasonably describe the claimant's disability level and symptoms, then the veteran's disability
picture is contemplated by the rating schedule for that disability, the assigned schedular rating is
deemed appropriate, and referral for consideration of an extraschedular rating is not warranted. Id.
Thus, VA's disability-by-disability approach is consistent with the regulatory language of
§ 3.321(b)(1) and with the overall disability compensation scheme.
5
One of the dissenting opinions criticizes the Secretary because he chose to have the Deputy Director, of the
VA Office of Regulation Policy and Management submit a statement regarding the scope of authority delegated in §
3.321(b), rather than the Under Secretary of Benefits, the Director of the Compensation Service, or the Secretary himself.
The majority disagrees with this complaint. It is not for this Court to dictate to the Secretary whether he or an agent,
whom he selects, informs the Court of VA's interpretation of § 3.321(b). This is a decision that is fully within the scope
of the Secretary's authority and it is not for the Court to question his choice. Anyone who is duly authorized by the
Secretary to speak for him does so on his behalf, and should be recognized by the Court as the voice of the Secretary.
9
Because the VA disability rating schedule is designed to consider the disabling effect of
disabilities separately, no single DC provision will adequately assess the variety of symptoms
involved with multiple service-connected disabilities. For example, in this case, any rheumatic heart
disorder symptoms would per se not be contemplated in the DCs for a knee disability. Thus, when
multiple service-connected disabilities are involved, VA would never be able to determine that a
veteran's disability picture resulting from all of his service-connected disabilities is adequately
contemplated by the standards or criteria found in the rating schedule.
The Secretary's interpretation of § 3.321(b) is also consistent with the regulations governing
effective dates. 38 C.F.R. § 3.321(b)(3) specifies how to determine the effective date of an
extraschedular rating, providing that "[t]he effective date of these extra-schedular evaluations
granting or increasing benefits will be in accordance with § 3.400(b)(1) and (2) as to original and
reopened claims and in accordance with § 3.400(o) in claims for increased benefits." Subsections
(b)(1) and (2), and (o) of § 3.400 all set an effective date in accordance with events that relate to a
single disability claim, such as the date of receipt of the claim. However, a veteran may file separate
disability compensation claims for separate conditions at different times, each with its own date of
filing. See Elkins v. Gober, 229 F.3d 1369, 1375 (2000) ("[T]here is no requirement that a veteran's
various claims for relief be simultaneously filed and adjudicated, either upon initial review or on
appeal. Rather, we have recognized that the unique statutory process of adjudication through which
veterans seek benefits may necessarily require that the different issues or claims of a case be resolved
at different times, both by the agency of original jurisdiction and on appeal."). Given that the
effective-date provision in subsection (b)(3) specifies how to set an effective date only where an
extraschedular evaluation is based on a single-disability claim, it is difficult to conclude that the
language of § 3.321(b)(1) clearly contemplates extraschedular consideration on a multiple-disability
basis, which may involve multiple claims, or that the Secretary's interpretation of this provision is
inconsistent with the overall regulatory and statutory scheme.
After reviewing the language of §3.321(b), the context in which it is applied, and the
Secretary's interpretation of § 3.321(b)(1), the Court concludes that the Secretary's interpretation is
entitled to substantial deference because it is not unreasonable, plainly erroneous, or inconsistent
10
with the regulation or the statutory and regulatory scheme when viewed as a whole.6 See
Smith v. Nicholson and Tatum, both supra. For these reasons, the Court concludes that the Board was
not required to consider whether Mr. Johnson was entitled to referral for extraschedular
consideration of his right knee disability and rheumatic heart disease on a collective basis.
B. Individual Disabilities
Alternatively, Mr. Johnson argues that the Board erred in denying referral for consideration
of an extraschedular disability rating for his rheumatic heart disease and right knee disability on an
individual-disability basis. App. Br. at 5-10, 12-3. Specifically, he argues that the Board failed to
give an adequate statement of reasons or bases for its decision that referral was not warranted. In
this regard, he contends that the Board failed to compare "the level of severity and symptomatology
of the claimant's individual service-connected disabilit[ies] with the established criteria found in the
rating schedule for that disability," as required by § 3.321(b)(1) and step one of Thun, supra. App.
Br. at 7. Regarding step two of Thun, he contends that the Board failed to discuss lay statements,
which indicated that his disabilities have caused a marked interference with employment. He argues
that these deficiencies in the Board's statement of reasons or bases require remand.
The Board is required to provide a written statement of the reasons or bases for its findings
and conclusions, adequate to enable an appellant to understand the precise basis for the Board's
decision as well as to facilitate review in this Court. 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). To comply with
this requirement, the Board must analyze the credibility and probative value of the evidence, account
for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its
rejection of any 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); Gilbert, 1 Vet.App. at 57.
6
Mr. Johson also attempts to bolster his argument by relying on the concurring opinion in Brambley v. Principi,
17 Vet.App. 20 (2003) (Steinberg, J., concurring). However, the Court has never adopted Judge Steinberg's concurrence
in Brambley as the controlling law on this issue, and a concurring opinion is not binding on the Court. See Maryland
v. Wilson, 519 U.S. 408, 412-13 (explaining that statements in a concurring opinion do not constitute binding precedent).
11
Regarding Mr. Johnson's heart disease, the Board concluded that the record did not
demonstrate that his disability picture was so exceptional or unusual as to render impractical the
available schedular rating. R. at 15-16. In doing so, the Board pointed out that the medical evidence
demonstrates that Mr. Johnson currently has no residuals of heart disease. R. at 16. Additionally,
the Board concluded that there is no evidence that Mr. Johnson has any unusual factors such as
frequent hospitalizations or marked interference with employment related to his heart disease. Id.The Court observes that despite Mr. Johnson's argument that the Board failed to consider his lay
statements, he does not point to any lay evidence indicating that he has any heart-related symptoms
or that his heart disease causes frequent hospitalization or marked interference with employment.
See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir.
2000) (table) (holding that the appellant bears the burden of demonstrating error on appeal). For
these reasons, the Court concludes that Mr. Johnson fails to demonstrate that the Board's reasons or
bases for denying referral for extraschedular consideration for heart disease are inadequate. See
Allday, Gilbert, and Caluza, all supra.
Regarding Mr. Johnson's right knee disability, the Board concluded that, under step one of
Thun, the "symptoms associated with the right knee disorder are reasonably contemplated by the
separately assigned 10[%] evaluations for instability and limitation of motion." R. at 16. Further,
the Board concluded that, because the record shows that Mr. Johnson has continued to work for a
number of years without any evidence that his right knee has caused "marked interference" with
employment or frequent hospitalizations, his disability picture is not exceptional or unusual. Id.
Mr. Johnson is correct that the Board decision does not contain a discussion comparing his disability
picture with the criteria in the rating schedules for that disability. 22 Vet.App. at 115. The Board
does not discuss whether the rating schedule criteria regarding instability and limitation of flexion
or extension reasonably describe Mr. Johnson's right knee disability, which is manifested by
difficulty standing and walking for an extended time. Accordingly, the Court finds that the Board's
discussion under step one of Thun is inadequate.
Nonetheless, the Court finds that the Board's error was harmless. See 38 U.S.C. § 7261(b);
Conway v. Principi, 353 F.3d 1369,1374 (Fed. Cir. 2004). The Board's finding, under step two of
Thun, that Mr. Johnson's right knee disorder does not present an exceptional disability picture with
12
related factors such as marked interference with employment or frequent hospitalization is clear and
permits judicial review. Contrary to Mr. Johnson's contention, the Board considered the lay
statements of record regarding the effects of his right knee disability on his employment. The Board
described those lay statements in its general discussion of the evidence, and acknowledged in its
analysis section addressing extraschedular consideration the July 2009 statements of Mr. Johnson's
family members concerning his work capacity. The Board then found, however, that Mr. Johnson
was able to maintain employment at two jobs and that there was no evidence in the record indicating
that his right knee caused marked interference with that employment. To the extent that Mr. Johnson
is concerned that the Board did not discuss potentially relevant lay statements within that portion of
the Board's statement specifically addressing extraschedular consideration, there is no requirement
that the Board discuss evidence in any particular section of its decision. A Board statement generally
should be read as a whole, Prickett v. Nicholson, 20 Vet.App. 370, 375 (2006), and if that statement
permits an understanding and facilitates judicial review of the material issues of fact and law
presented on the record, then it is adequate. See Allday, supra. The Court finds that the Board
decision on appeal, considered in its entirety, meets this standard. Further, Mr. Johnson has not
shown that the Board's finding under step two of Thun is clearly erroneous based on the record as
a whole. Because Mr. Johnson has not established that he has been prejudiced by any error that the
Board may have committed in denying him entitlement to referral for consideration of an
extraschedular rating for his right knee disability, the Court affirms the Board's decision that an
extraschedular rating for Mr. Johnson's right knee disability is not warranted. See
Shinseki v. Sanders, 556 U.S. 396 (2009).
C. TDIU Remand
Mr. Johnson's final argument is that the Board should not have adjudicated his entitlement
to an extraschedular rating because the record is not complete as to the effect of his
service-connected disabilities on his employment. App. Br. at 13-16. Mr. Johnson relies on the
Court's decision in Brambley to bolster his argument. In Brambley, the Board specifically remanded
the issue of a rating of TDIU for further development regarding the veteran's employability, but also
determined that the record was properly developed on the issue of whether each disability
demonstrated a marked interference with employment for purposes of extraschedular evaluation.
13
17 Vet.App. at 24. The Court found that it was difficult to understand how the Board could maintain
divergent positions on the completeness of the record. The Court held that because both TDIU and
extraschedular consideration required "a complete picture of the appellant's service-connected
disabilities and their effect on his employability . . . , it was premature for the Board to decline
[referral for] extraschedular consideration where the record was significantly incomplete in a number
of relevant areas probative of the issue of employability." Id.
Here, the Board did not remand entitlement to a rating of TDIU because the record was
incomplete regarding the effect on employability of any of Mr. Johnson's service-connected
disabilities for which the Board had denied referral for extraschedular consideration. Instead, the
Board remanded the TDIU issue because it had already determined to remand the issue of the
appropriate disability rating for left knee disability when, without waiving his right to initial RO
consideration of evidence of left knee disability, the appellant submitted new VA treatment records
addressing the severity of his left knee disability. The Board concluded that, because the RO's
disposition of the left knee could effect the appellant's entitlement to TDIU, a remand was warranted.
Because we find lawful VA's practice of considering referral for extraschedular consideration only
on the basis of each individual disability, evidence showing the degree of disability for the left knee
is not relevant to referral for consideration of an extraschedular rating for the appellant's other
service-connected disabilities. This is not a case where the Board reached an inconsistent decision
regarding the completeness of the record. Therefore, the Court is not persuaded that the Board erred
when it decided Mr. Johnson's entitlement to referral for consideration of extraschedular ratings.
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and a review of the
record, the Board's May 14, 2010, decision regarding the matters before the Court are AFFIRMED.
MOORMAN, Judge, concurring in the result: In agreeing with the majority, I recognize that we are
bound by the high degree of deference that the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) traditionally has shown for the Secretary's interpretation of his own regulatory words, even
when the interpretation has first been advanced during litigation. Reizenstein v. Shinseki, 583 F.3d
141331, 1335 (2009) (citing Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1364
(2005)). Today, we measure this high degree of deference against a VA regulation that, on its face,
appears most easily construed to convey only one meaning–that a veteran's collective service-
connected disabilities may be considered in determining whether referral for an extraschedular rating
is warranted. The Secretary, however, has offered an alternative meaning for the language in the
regulation that is plausible, albeit not obvious; and he provides an affidavit asserting that a future
change to the regulation will clarify his offered alternative meaning–i.e., that each of a veteran's
disabilities is to be considered separately under § 3.321(b)(1).
Without the Secretary's stated interpretation as to what his words were intended to convey,
I believe a remand would have been warranted here based on the Board's failure, in denying referral
for an extraschedular rating, to consider the legal standard of 38 C.F.R. § 3.321(b)(1) that sprouts
from the otherwise seemingly plain meaning of the language used in the regulation. This legal
standard is whether the appellant's "disability picture" that includes service-connected disabilities
of both the right and left knees (as well as service-connected heart disease) warranted referral for an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) on the basis of his collective service-connected
disabilities.
In the absence of the Secretary's recently asserted interpretation, I would apply the simple
principle that words have meaning. And, even in the law and regulations implementing the law,
plain words should have plain meanings. The Secretary, in 38 C.F.R. § 3.321(b)(1) (emphasis
added), addresses exceptional cases that require special review in order to "accord justice." These
"cases," not "claims," are those in which the schedular "evaluations" are found to be inadequate.
Under such circumstances, the under secretary for benefits or the director of the compensation
service is authorized to approve an extraschedular evaluation commensurate with the average earning
capacity impairment due exclusively to the service-connected "disability or disabilities." The
Secretary sets forth the governing norm in these exceptional cases: 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."
15
Clear regulatory statements, plainly expressed, using both singular and plural forms of
important words, it seems to me, almost always should be applied as written. This is especially true
when the plain language of the regulation leads to a more expansive, and pro-veteran, application
of the rule. To do otherwise potentially gives heed not to plain language that favors injured veterans
but, rather, to guiding interpretive principles that mirror those enunciated in Lewis Carroll's, Through
the Looking Glass:
'I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant
"there's a nice knock-down argument for you!"'
'But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I
choose it to mean — neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'
LEWIS C ARROLL, THROUGH THE LOOKING GLASS, ch. VI (1865), available at
http://www.gutenberg.org/ebooks/23718.
Although the words of § 3.321(b)(1), on initial review, appeared to me to be clear on their
face, I must afford the Secretary deference in the plausible interpretation of his Agency's own
regulation. Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006) (stating that the Secretary's
interpretation of his own regulations is "'of controlling weight unless it is plainly erroneous or
inconsistent with the regulation'" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945))); see Auer v. Robbins, 519 U.S. 452, 461-62 (1997). I do so based on precedent, despite the
fact that the Secretary changed this regulation in 1961 to discuss extraschedular consideration for
the veteran's complete "disability picture" and to add the words "or disabilities" where they had not
previously appeared. See Secretary's Memorandum of Law, Attachment D; Secretary's Second
Memorandum of Law, Attachment J. And, I do so despite the fact that the use of the plural
"disabilities," following, in a phrase, "disability" and the conjunction "or," in the regulation appears
consistent with defining "disability picture" to include both an individual disability and disabilities
in the aggregate.
16
Further, I note that the Secretary's offered meaning of the language comes subsequent to this
Court's observation in 2003 that "[a]lthough it is well settled that extraschedular consideration
[(under § 3.321(b)(1))] and TDIU claims are not necessarily 'inextricably intertwined' . . . here both
adjudications require a complete picture of the appellant's service-connected disabilities and their
effect on his employability." Brambley v. Principi, 17 Vet.App. 20, 24 (2003) (citation omitted)
(emphasis in original). One Judge specifically noted in Brambley that the words of this regulation
indicated that multiple disabilities were to be considered in the aggregate when addressing the
exceptional case warranting extraschedular consideration:
[T]he Board erred in its application of the regulation by failing to determine whether
the appellant's service-connected disabilities as a whole entitled him to
extraschedular-rating consideration under § 3.321(b)(1). When VA evaluates a case
for extraschedular consideration, the regulation directs the examination of the
veteran's "average earning capacity impairment due exclusively to his service-
connected disability or disabilities."
Id. at 26 (Steinberg, J., concurring) (emphasis in original).
The Secretary, thereafter, took no action to amend this regulation to conform to his presently
asserted interpretation and intended meaning of these words. Had he paid heed to Judge Steinberg's
unambiguous warning concerning the plain meaning of his regulation, the Secretary, during these
past 10 years since Brambley, could easily have changed the regulation to clarify and reflect his
presently asserted meaning. Instead, the Secretary has waited until the present litigation to submit
an affidavit asserting that a future change to the regulation will clarify his offered meaning of these
words, i.e., that each of a veteran's disabilities is to be considered separately under § 3.321(b)(1) has
always been what the Secretary's words were intended to convey.
The Federal Circuit has recently made it abundantly clear that the mere fact that the Secretary
has had ample opportunity to revise his regulations to conform to a currently asserted meaning, but
did not do so, is of no consequence. In Walker v. Shinseki, __ F.3d __, __, No. 2011-7184, slip op.
at 12-17, 2013 WL 628429, at *6-7 (Fed. Cir. Feb. 21, 2013), a unanimous panel of that court
concluded that a newly asserted interpretation of VA's regulation § 3.303(b) is controlling despite
the following circumstances: (1) VA had acquiesced in this Court's interpretation of 38 CFR
§ 3.303(b) for 15 years; (2) VA had not asserted a contrary meaning to the regulation in its initial
17
briefing of the Walker case in either this Court or the Federal Circuit; (3) VA had issued a Notice
of Proposed Rulemaking in 2010 (with mandatory review by the Veterans Benefits Administration,
VA General Counsel, and the Office of Management and Budget before publication in the Federal
Register), which fully embraced this Court's holding with respect to the interpretation of the
regulation;7 (4) VA had not sought to contest that meaning despite application of the same meaning
in several precedential decisions since 1997; (5) VA had not contested the Federal Circuit's own use
of the same interpretation in Groves v. Peake, 524 F.3d 1306, 1309 n.1 (Fed. Cir. 2008); and (6) VA
adopted an alternative interpretation only after the Federal Circuit directed additional briefing
following oral argument.
Therefore, although VA's interpretation of its regulation may hang on the thinnest thread,
Federal Circuit precedent requires deference despite an alternative reading of the regulation that
appears clear on its face and favors veterans. This Court, which has a duty to follow the Federal
Circuit's precedents in such matters, thus must defer to the Secretary's interpretation in the case now
before the Court.
In applying the Federal Circuit's decisions, grounded on U.S. Supreme Court precedent,
concerning the deference due to an agency in its interpretation of its own regulations, I reluctantly
conclude that the Secretary has presented a plausible, even though strained, alternative reading of
§ 3.321(b)(1) that warrants an affirmance of the Board's decision. I therefore concur in the majority
opinion in this case.
However, this case has caused me to ponder whether special rules of construction should be
applied to VA regulations in circumstances such as these. The U.S. Supreme Court has recognized
7
The Secretary's Supplementary Information accompanying the proposed rule stated:
Proposed § 5.243(d), based on portions of current § 3.303(b), would provide rules for establishing
service connection based on the continuity of signs or symptoms. That is, if the chronicity provisions
do not apply, VA will grant service connection if there is competent evidence of signs or symptoms
of an injury or disease during service or the presumptive period, of continuing signs or symptoms, and
of a relationship between the signs or symptoms demonstrated over the years and the veteran's current
disability. See Savage v. Gober, 10 Vet. App. 488, 498 (1997).
75 Fed. Reg. 53,744, 53,749 (Sept. 1, 2010) (Proposed Rule).
18
that the statutes affecting veterans benefits should be read and applied in a pro-veteran manner. See
Brown v. Gardner, 513 U.S. 115, 120 (1994) (ruling against the Government where the statutory text
and "reasonable inferences from it" supported the veteran's position); see also Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011) (stating that the Supreme Court has "long
applied 'the canon that provisions for benefits to members of the Armed Services are to be construed
in the beneficiaries' favor.'" (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 220-21 n.9 (1991))).
Likewise, the Federal Circuit has recognized that "[t]he VA disability compensation system is not
meant to be a . . . strategem to deny compensation to a veteran who has a valid claim."
Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). I question whether the judicial precedents
for reviewing VA's regulations should always result in the same level of deference afforded to the
interpretation of such regulations promulgated by agencies charged with regulating business
practices, intellectual property, or international trade. After all, VA serves a purpose unique among
Federal agencies, characterized by the legal duty to assist its claimants in perfecting their just claims,
supported by legislation requiring that the benefit of the doubt must be given to such claimants, and
further undergirded by a uniquely pro-veteran, nonadversarial agency process. See
Shinseki v. Sanders, 556 U.S. 396, 412 (2009) ("Congress has made clear that the VA is not an
ordinary agency."). Perhaps VA, as an agency whose mission statement is etched in stone at the
Lincoln Memorial and was formulated as part of President Lincoln's Second Inaugural Address: "to
care for him who shall have borne the battle and for his widow, and his orphan,"8 should, in this case,
be afforded a less strict level of judicial deference.9
That VA's regulations generally are confusing, not well organized, and in dire need of
reformulation is reflected in the declaration accompanying the appellee's June 15, 2012,
memorandum of law in the instant case. This case, indeed many of the cases decided by this Court,
8
In 1959, these words became VA's motto and were etched on plaques which flank the main entrance to VA's
headquarters in Washington, DC.
9
I further note that many of VA's regulations were drafted at a time when they were not subject to judicial
scrutiny in any form. See Gardner, 513 U.S. at 122. Also, the Supreme Court recently articulated a lower standard of
deference, aptly observing that, "[o]ur practice of deferring to an agency's interpretation of its own ambiguous regulations
undoubtedly has important advantages, but this practice also creates a risk that agencies will promulgate vague and open-
ended regulations that they can later interpret as they see fit." Christopher v. Smithkline Beecham Corporation, 132 S.Ct.
2156, 2168 (2012).
19
makes manifest the need for clearly written regulations. The sooner such clarification is provided,
the sooner veterans and their families, the courts, and VA will no longer need to defer to the
"intended meaning" of regulations that were written and then modified decades before judicial
review. I look forward to that day.
KASOLD, Chief Judge, dissenting: With great respect for my colleagues in the majority, two
of their conclusions are simply wrong, with one such conclusion having significant adverse effect
on veterans and the VA claims process. The first and foremost error is the majority's finding of
ambiguity in a clear regulation based solely on an assertion of ambiguity in the briefing and
arguments presented by the counsel to the Secretary, which causes the majority to effectively defer
to the redrafting of an otherwise clear regulation, under the guise of interpretation. The second error
is the majority's apparent holding that to be adequate the Board's statement must follow a prescribed
order of discussion; although the holding is nonconsequential to the result in this case because the
majority find no prejudice, it is worth noting that as a matter of law it is simply wrong.10
I. FIRST ERRONEOUS CONCLUSION
Overview
At the outset, an overview of the issue and how it is presented, as well as what is not at issue,
is warranted. The Secretary has established a rating schedule with assigned disability ratings that
the RO and Board may award to veterans with disabilities based generally on the degree of disability
and the effect it has on a veteran's earning capacity, but based sometimes on other factors such as
effect on social functioning or effect on daily activities. Hensley v. Brown, 5 Vet.App. 155, 162
(1993) ("VA's rating schedule is constructed for the purpose of establishing levels of disability for
compensation purposes based upon 'average impairment in earning capacity' resulting from particular
injuries or diseases." (quoting 38 U.S.C. § 1155)); see also 38 C.F.R. § 4.1 (2012) ("The percentage
10
I also note that the majority gratuitously and favorably cite Medrano v. Nicholson, 21 Vet.App. 165, 170
(2007) in note 1, ante at 2, for the proposition that the Court "cannot disturb" a finding favorable to a veteran. Although
Medrano is quoted correctly, the concept that the Court "cannot disturb" a favorable finding is dictum, and appears to
misstate the law. The plain language of 38 U.S.C. § 7261(a)(3) authorizes the Court to "set aside . . . findings (other than
those described in clause (4) of this subsection," i.e., "findings of material fact adverse to the claimant") that are, inter
alia, "arbitrary, capricious," "contrary to constitutional right," "in excess of statutory jurisdiction," or "without observance
of procedure required by law." 38 U.S.C.§ 7261 (emphasis added).
20
ratings represent as far as can practicably be determined the average impairment in earning capacity
resulting from such diseases and injuries and their residual conditions in civil occupations.");
compare 38 C.F.R. § 4.130, DC 9411 (2012) (evaluating PTSD based upon "[o]ccupational and
social impairment"), with 38 C.F.R. § 4.88b, DC 6354 (2012) (evaluating chronic fatigue syndrome
based upon the degree to which fatigue "restricts routine daily activities").
Also, to accord justice in exceptional cases where there are unusual factors present and the
rating schedule does not adequately address an individual's earning capacity impairment due to
disability, the Secretary has authorized the under secretary for benefits (USB) or the director of the
compensation and pension service (Director), to award an extraschedular rating. 38 C.F.R.
§ 3.321(b) (2012). Neither the RO nor the Board is authorized to award an extraschedular rating.
Rather, the RO and Board are tasked with determining whether such a rating might be warranted,
such that referral for USB or Director consideration is warranted. For purposes of our review, the
Board is required to address such possible referral whenever the issue is raised by a veteran or
otherwise reasonably raised by the record, and, if referral is denied, to provide reasons or bases for
denying such referral. See Gutierrez v. Principi, 19 Vet.App. 1, 9 (2004) (Board's reasoning flawed
when it fails to discuss adequately evidence in support of claim); Thompson v. Gober, 14 Vet.App.
187, 188 (2000) (Board must provide an adequate statement of reasons or bases "for its rejection of
any material evidence favorable to the claimant"); Pond v. West, 12 Vet.App. 341, 347 (1999) (Board
is required to develop all issues reasonably raised below); Talbert v. Brown, 7 Vet.App. 352, 356
(1995) (noting that the Board must address reasonably raised issues and is not obligated to "conduct
an exercise in prognostication").
There is no dispute as to the Board's obligation to evaluate whether referral for extraschedular
consideration is warranted with regard to an individual disability. Rather, the issue is whether the
Board has a duty to consider and address possible referral for extraschedular consideration when the
total disability picture of the veteran – a disability picture based on all of a veteran's disabilities and
the combined effect they have on employability and earnings capacity – is exceptional or unusual
and is not contemplated by the rating schedule's focus on average earning capacity impairment for
each individual disability.
21
The Secretary's counsel acknowledges that the Secretary has the legal authority to authorize
an extraschedular disability rating based on the complete disability picture of a veteran, but counsel
argues that the Secretary has not done so. Rather, counsel argues that the Secretary has delegated
to the USB and Director the authority to award an extraschedular disability rating only for each
individual disability, based on the limited disability picture associated with the effects of that
disability on a veteran's employment and earnings ability. Otherwise stated, the Secretary's counsel
argues that neither the USB nor the Director may award an extraschedular disability rating based on
a veteran's total disability picture. Accordingly, the Secretary's counsel argues that there is no reason
for the Board to consider and address possible referral for an extraschedular disability rating based
on the veteran's total disability picture, and therefore there is no error.
Significantly, the issue is not whether the USB or Director should have awarded an
extraschedular disability rating on the veteran's complete disability picture based on all disabilities
and the combined effect they have on employability and earnings capacity. Rather, the issue is
whether the USB or Director even have the authority to make such an award; if yes, then remand is
required so that the Board may address the issue. As discussed below, pursuant to the plain language
of § 3.321(b), the USB and Director have the authority,11 and the Board erred by not discussing
whether Mr. Johnson's claim should have been remanded for further development of possible
entitlement to an extraschedular disability rating on a collective-disability basis.
Saying Something is Ambiguous Does not Make it So
Although counsel for the Secretary argues that § 3.321(b) is ambiguous, and his argument
is cause for serious review, simply saying something is ambiguous does not make it so. See Tropf
v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("[A] regulation is not ambiguous merely because the
Secretary takes a litigation position that contradicts the plain language of the regulation."); see also
Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 130 S. Ct. 1758, 1769 n.7 (2010)
("[M]erely saying something is so does not make it so . . . ."). As discussed below, the plain wording
11
Tellingly, counsel for the Secretary did not submit a statement from the USB or the Director, or the Secretary
for that matter, regarding the scope of authority delegated in § 3.321(b). For whatever reason, the only statement
submitted is one from the deputy director of the Office of Regulation Policy and Management for the Department of
Veterans Affairs (Deputy Director) – the person responsible for redrafting the regulations. See also infra note 4.
22
and promulgating history of the regulation clearly reflect the Secretary's delegation of authority to
award an extraschedular rating based on a veteran's total disability picture arising from multiple
disabilities. Moreover, counsel for the Secretary fails in his multiple assertions to explain why the
regulation should be interpreted as limiting the authority of the USB and Director to award an
extraschedular rating based on a veteran's complete disability picture.
I also note that although a majority of the Court find ambiguity in § 3.321(b), or at least
accept the argument of counsel to the Secretary that there is ambiguity, their numbers and
acquiescence do not mean that the regulation is ambiguous. If it were so, Hans Christian Andersen's
"The Emperor's New Clothes"12 never would have gained the renown it has acquired, and appellate
decisions finding ambiguity would never be reversed by the Supreme Court. See, e.g., Chem. Mfrs.
Ass'n v. Natural Res. Defense Council, Inc., 470 U.S. 116, 124-25 (1985) (reversing the finding of
the U.S. Court of Appeals for the Fourth Circuit that an amendment to the Clean Water Act was
ambiguous); Smith v. Illinois, 469 U.S. 91, 91 (1984) (reversing the Illinois Supreme Court's finding
that the defendant's responses to continued police questioning rendered his initial request for counsel
ambiguous).
Moreover, although Lewis Carroll's Humpty Dumpty might define words as he wishes in
Through the Looking Glass, the words in our laws and regulations are given their contextual,
ordinary meaning. See, e.g., Brown v. Gardner, 513 U.S. 115, 118 (1994) ("Ambiguity is a creature
not of definitional possibilities but of statutory [or regulatory] context."); Tropf, 20 Vet.App. at 321
n.1 ("[A] statute is ambiguous only when the application of the ordinary meaning of words and rules
of construction to the plain language of the regulation fails to answer the question at issue."); see
also United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988)
(stating that "[a] provision that may seem ambiguous in isolation is often clarified by the remainder
of the statutory scheme – because the same terminology is used elsewhere in a context that makes
12
Although a children's story, "The Emperor's New Clothes" – which involves an emperor and many of his
citizens being talked into believing he was wearing a beautiful new set of clothes, when he wore none at all – is well cited
as an example of people believing something to be fact that is not. See, e.g., Abercrombie & Fitch Stores, Inc. v. Am.
Eagle Outfittesr, Inc., 280 F.3d 619, 631 (6th Cir. 2002) (using "Emperor's New Clothes" analogy); see also HANS
CHRISTIAN ANDERSEN, THE COMPLETE ANDERSEN (Jean Hersholt trans., Heritage Press 1949), available at
http://www.anderson.sdu.dk/vaerk/hershold/TheEmperorsNewClothes_e.html.
23
its meaning clear or because only one of the permissible meanings produces a substantive effect that
is compatible with the rest of the law" (citations omitted)); Gardner v. Derwinski, 1 Vet.App. 584,
586 (1991) ("Determining a statute's plain meaning requires examining the specific language at issue
and the overall structure of the statute." (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05
(1988))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir.), aff'd, 513 U.S. 115 (1994).
The Regulation's Plain Language
Substantial deference is granted to the Secretary's interpretation of his own regulation so long
as it is not "plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452,
461 (1997); see also Smith v.Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006) (citing
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
The regulation governing extraschedular consideration reads, in pertinent part:
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) (emphasis added).
Rather than addressing the situation where "a schedular evaluation" is inadequate, which
would indicate a focus on each disability evaluation independently, the regulation addresses the
plural situation where "the schedular evaluations" are inadequate, which can encompass an
individual disability evaluation as well as multiple disability evaluations. Id. Similarly, rather than
limiting the criteria for an extraschedular evaluation to the exceptional case where an individual
disability causes earnings impairment beyond the average impairment, the regulation explicitly notes
that an extraschedular evaluation is to be based on earnings impairment beyond average caused by
24
"disability or disabilities," which clearly contemplates overall impairment caused by the disabilities
individually as well as collectively.
Tellingly, the regulation authorizes "an "extraschedular" evaluation" which, in the context
of the schedular evaluations being inadequate and the extraschedular evaluation being based on the
earnings impairment due to disability or disabilities, reflects that the extraschedular evaluation can
be done on an individual or composite disability basis. Also, the governing norm for considering
whether an extraschedular evaluation should be awarded is predicated on the exceptional or unusual
disability picture of the veteran, which, in the context of determining earnings impairment due to
disability or disabilities certainly envisions the veteran's complete disability picture, whether due to
one disability or multiple disabilities.
Additionally, the predicate for authorizing an extraschedular evaluation is "[t]o accord
justice." Although the Secretary could have accorded justice only on a disability-by-disability basis,
the language of the sentence containing this phrase, as well as the language of the entire regulation,
does not support such a limiting interpretation, which also would be inconsistent with the broad
concept of according justice. For example, under the regulation, a service-connected right-hip, right-
knee, and right-ankle disability assessed individually, might not affect employment on an individual
disability basis beyond the degree envisioned by the individual disability ratings, but – when viewed
collectively – the disabilities might significantly affect employment. Nothing in the Secretary's
regulation limits extraschedular consideration to a disability-by-disability assessment; indeed, the
regulation states the opposite. Moreover, inasmuch as the Secretary has broad authority to issue
regulations, 38 U.S.C. § 501, there was no need to cite "justice" as the basis for authorizing an
extraschedular evaluation unless the delegation was intended to be broad, and there is no reason to
twist the interpretation of "justice" as only permitting an extraschedular evaluation on a limited,
individual-disability basis. If the Secretary wanted to limit the criteria for an extraschedular
evaluation to a disability picture associated with only a single, individual disability he could have
done so; he did not, and has not yet done so.13
13
The Deputy Director filed a statement with the Secretary's first supplemental memoranda. The Deputy
Director's statement reflects that official's understanding of a longstanding interpretation that extraschedular evaluation
was limited to an individual disability assessment and that official's current effort to change the regulation to make it clear
25
Although counsel for the Secretary argues that the regulation's reference to "disability or
disabilities" connotes extraschedular evaluation for one or more individual disabilities as opposed
to an evaluation based on the collective effect of multiple disabilities, such an interpretation ascribes
a degree of redundancy to the regulation – and such a constrained view of "accord[ing] justice" – that
it would be contrary to the well-established rule that effect must be given to all words expressed in
legislation and regulation. Roper v. Nicholson, 20 Vet.App. 173, 178 (2006) (holding that "the VA
statutory and regulatory scheme 'should be construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void or insignificant, and so that one section will not
destroy another unless the provision is the result of obvious mistake or error'" (quoting 2A N.
SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION, § 46:06 (6th ed. 2000))); see also
King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (holding that, when interpreting a statute or
regulation, the court is required to look at the context and provisions of law as a whole); Imazio
Nursery, Inc. v. Dania Greenhouses, 69 F.3d 1560, 1564 (Fed. Cir. 1995) (holding that all parts of
a statute must be construed together without according undue importance to a single or isolated
portion); Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (the canons of statutory interpretation
apply to interpreting regulations).
It is worth reiterating that the interpretation recently proffered by counsel for the Secretary
limits the authority of the USB or Director, each of whom has been delegated authority in
§ 3.321(b)(1) to render extraschedular evaluation decisions. See also 38 U.S.C. § 512(a) (giving
Secretary broad authority to delegate authority to act); Parrish v. Shinseki, 24 Vet.App. 391, 396
(2011) (recognizing Secretary's broad authority to delegate authority to act); 38 C.F.R. § 3.100(a)
(delegating general authority to the USB to act on matters within the jurisdiction of the Veterans
that the USB and Director do not have the authority to grant an extraschedular evaluation on a multiple disability basis.
Although I do not question the Deputy Director's understanding of the interpretation of the regulation and how it might
have been interpreted over time, it is the opinion of the USB, Director, or general counsel, or evidence of a consistent
application of that interpretation, that should have been provided, and is notably absent. Cf. Amanfi v. Ashcroft, 328 F.3d
719, 720 (noting that the Attorney General is statutorily the ultimate authority on interpretations of the Immigration and
Nationality Act (citing 8 U.S.C. § 1103)); Vons Cos. v. United States, 51 Fed. Cl. 1, 21 (2001) (stating that the "court
[should be] extraordinarily hesitant to attribute to the IRS or the Treasury Department interpretations of a revenue ruling
made by individual IRS employees that represent their personal views, rather than the official position of the agency").
Of equal note, although the Secretary certainly has the authority to change his regulation, no substantive change has taken
place over the past half-century, and, is now only taking place as a result of today's majority decision.
26
Benefit Administration). To be sure, neither the USB nor the Director is required to grant an
extraschedular evaluation simply because a veteran has multiple disabilities – indeed, extraschedular
evaluation is for the exceptional or unusual case – but there equally is nothing in the regulation that
limits their authority to grant an extraschedular evaluation based only on a disability-by-disability
basis. As indicated above, if the Secretary wanted to limit the authority of the USB or the Director,
he could have done so – and still can; but, he has not.14
Promulgating History
Although the plain meaning of the regulatory language is clear and binding, counsel for the
Secretary suggests that the regulation's promulgating history supports the interpretation that the
authority delegated to the USB and Director is limited in scope. To the contrary, however, the
promulgating history supports the plain language of the regulation that the USB and Director have
been delegated broad authority to award an extraschedular disability rating based on the total
disability picture of the veteran.
Based on the Secretary's supplemental memoranda, the regulation has its roots in a 1930 rule,
Rule 1142. Secretary's Supplemental (Sec. Supp.) Br. at App'x A (cited by the Secretary as VA
Rules and Procedure § 1307 (May 19, 1930)). The language therein is unclear – ambiguous – as to
whether an extraschedular disability rating could be predicated on a multiple-disability basis, because
the rule simply indicates that such a rating would be based on the reduction in average earning
capacity compared to the average worker "suffering a similar disability," which envisions either a
single disability or multiple disabilities.
VA regulations from 1934, however, strongly indicate that an extraschedular evaluation was
permissible based on multiple disabilities. Specifically, VA Regulation No. 3 primarily addressed
total disability ratings and clearly authorized such ratings based on total disability arising from a
single disability or multiple disabilities. Sec. 2d Supp. Br. at App'x G (cited by the Secretary as
14
Noting that the Secretary has not limited the authority of the USB or Director is not a suggestion that he
should do so. Indeed, upon issuance of today's decision, the Secretary promptly should change the position espoused
by his counsel and ensure that veterans suffering from multiple disabilities and a combined effect beyond that associated
with each individual disability are considered for an extraschedular rating based on the collective disability effect on their
employability and earnings capacity. Our veterans's sacrifices demand no less from a grateful Nation.
27
Veterans Regulation No. 3(a) on VA Rules and Procedures § 1307) ("The rule . . . permit[s] ratings
of total disability . . . when the disabled person . . . has been unable, by reason of impairment of mind
or body, to follow substantially gainful occupation, provided that his physical or mental disabilities
are deemed by the rating agency to be sufficiently severe to produce this occupational incapacity"
(emphasis added))). Pertinent hereto, this same regulation explicitly authorized submission of
meritorious cases for consideration of an extraschedular rating when the case did not qualify for a
total disability rating under the rating schedule or Regulation No. 3. Inasmuch as Regulation No.
3 addressed a total disability rating predicated on either a single- or collective-disability basis, it is
disingenuous for the Secretary's counsel to argue that this regulation authorized referral for
extraschedular consideration of cases (that did not qualify for a total disability rating) only on an
individual-disability basis.
Revisions reflected in the 1936 VA version of VA Rules and Procedures § 1142 also indicate
that an extraschedular evaluation could be predicated on multiple disabilities, and it certainly
contains no limitation against such a rating. Specifically, the rule provides that, if the general rating
schedule was deemed inadequate, the matter could be forwarded for an advisory opinion or
reevaluation. Of note, the forwarded submission was to include a recommendation and "evaluation
of every disability." Sec. Supp. Br. at App'x B (cited by the Secretary as VA Rules and Procedure
§ 1142 (Jan. 25, 1936)). A 1945 VA rule also provides the same general guidance that, if the rating
schedule is deemed inadequate, a claim may be forwarded for an advisory opinion or reevaluation,
although the 1945 rule does not contain the guidance stated in the 1936 rule as to what should be
included in the forwarded submission. Sec. Supp. Br. at App'x C (cited by the Secretary as VA
Regulation § 1142(A) (Oct. 19, 1949) [sic]).
In 1960, an interim regulation was issued that provided, inter alia, effective dates for an
extraschedular evaluation, tied to the date of the claim or the facts of the case. Although the
Secretary's briefing suggests that this supports an interpretation that extraschedular consideration is
predicated only on a single-disability basis, the suggested support is illusive, at best. Whether
predicated on a claim for one disability or multiple disabilities, or predicated on a disability recently
found to be service connected for a veteran already service connected for one or more disabilities,
the effective date of an extraschedular evaluation is tied to the date of the earliest claim still open
28
or the facts found, similar to the effective date for the award of a total disability rating based on
individual unemployability (TDIU). 38 U.S.C. § 5110(a) ("[T]he effective date of an award . . . shall
be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of
application therefor."). Otherwise stated, how an effective date is determined sheds no light on
whether the USB or Director has the authority to grant an extraschedular evaluation on only a
single-disability basis or a cumulative-disability basis. Sec. 2d Supp. Br. at App'x H (cited by the
Secretary as VA Emergency Interim Issue, EM 21-58 (June 17, 1960)).
By 1961, VA had codified its regulations and implemented VA Regulation 1321, a version
of § 3.321 substantially similar to its current form. Here, any ambiguity present in the earlier VA
rules is gone. Though not precluded earlier, by 1961 it became clear that an extraschedular
evaluation could be granted "commensurate with the average earning capacity impairment due
exclusively to the service connected disability or disabilities." Id. (emphasis added). An
explanation associated with the regulatory changes made to several regulations in 1961 notes that
most regulatory changes were nonsubstantive, except for the changes to Regulations 1353 and 1321,
which were "substantive." Sec. 2d Supp. Br. at App'x J (cited by the Secretary as VA Regulation
1321 (§ 3.321) (1961)). Although the specific substantive changes were not further detailed, the
addition of "or disabilities" in the context of generally ambiguous rules in the past, and in the context
of substantive changes being made speaks volumes. Id.
In sum, the regulation's promulgating history supports the plain language of the regulation
that the USB and Director have been delegated broad authority to award an extraschedular disability
rating based on the total disability picture of the veteran. See Hamdan v. Rumsfeld, 548 U.S. 557,
580 n.10 (2006) (noting that the Court's interpretation of the plain language of a statute is supported
by the legislative history); Lamie v. U.S. Trustee, 540 U.S. 526, 539 (2004) (noting that "history and
policy considerations lend support" to Court's holding regarding the plain language of a statute).
VA Adjudication Procedures Manual
The Secretary's briefing notes that the VA Adjudication Procedures Manual (M21-1MR)
states that a claim is to be submitted for extraschedular consideration under "38 C.F.R. § 3.321(b)(1)
if the schedular evaluations are considered to be inadequate for an individual disability" (emphasis
29
added), and the briefing contends that this phrasing reflects an interpretation that § 3.321(b)(1)
prohibits extraschedular consideration based on multiple disabilities. M21-1MR, pt. III, subpt. iv,
ch. 6, sec. B(5)(c) (cited by the Secretary in Sec. Supp. Br. at App'x G). However, reading M21-
1MR as limiting the criteria for extraschedular consideration to only those instances where the
schedular evaluations are inadequate for an individual disability would result in M21-1MR trumping
the plainly established broader criteria in the regulation that is not subject to being trumped by the
M21-1MR. See Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) ("VA interpretations of its
own regulations in its Adjudication Procedures Manual [M21-1] are 'controlling' as long as they are
not 'plainly erroneous or inconsistent with the regulation.'" (quoting Thun v. Shinseki, 572 F.3d 1366,
1369 (Fed. Cir. 2009) (quoting Auer, 519 U.S. at 461)); Castellano v. Shinseki, 25 Vet.App. 146,
151-52 (2011) (holding that "a properly promulgated regulation trumps an M21-1 provision or other
VA directive that plainly is erroneous or inconsistent with regulation").
Moreover, although this instructional manual directs referral for extraschedular consideration
when the rating schedule is inadequate to rate an individual disability, it does not preclude referral
for extraschedular consideration based on the veteran's collective disabilities. Indeed, in a preceding
section, the manual directs rating officials to "consider" possible entitlement to an extraschedular
evaluation when, inter alia, the evidence indicates "the rating schedule may be inadequate to
compensate for the average impairment of earning capacity due to disability (for example, marked
interference with employment or frequent periods of hospitalization)." M21-1MR, pt. III, subpt. iv,
sec. 6.B(10)(a) (emphasis added). There is no indication that "disability" is limited to an individual
disability, which would be the case if "a disability" had been used instead of "disability." There also
is no indication that rating officials should not forward a claim for extraschedular consideration
based on evidence that the rating schedule is inadequate for a disability picture resulting from
multiple disabilities.
Read together, these two provisions indicate that the rating official must submit a claim for
extraschedular consideration when the rating schedule is inadequate for an individual disability, but
may also submit a claim for extraschedular consideration whenever the rating schedule is inadequate
to compensate the veteran as a result of "disability," which can consist of multiple disabilities.
30
Thus, even if § 3.321(b) were ambiguous, the M21-1 does not reflect an interpretation that the USB
or Director lack the authority under § 3.321(b) to award an extraschedular evaluation on a combined
disability basis.
In sum, the M21-1MR not only cannot trump the plain language of a regulation, it does not
even conflict with the regulation here. Castellano, supra; cf. Talley v. Derwinski, 2 Vet.App. 282,
287 (1992) (holding that, just as statutes should be construed to sustain constitutionality, regulations
should be construed to harmonize with the law).
VA Practice
The Secretary's briefing notes an inability to confirm a consistent Agency practice regarding
this issue, which – he asserts – reflects a lack of authority in the USB or Director to award an
extraschedular evaluation on a multiple-disability basis. The briefing speculates that some Board
decisions might have considered referral in such a context, although no officials contacted by counsel
for the Secretary recall a decision granting such a rating. Moreover, none of the key officials, i.e.,
the Secretary, USB, or Director, has submitted a statement regarding the scope of authority believed
to have been delegated in § 3.321(b) when first promulgated in its current form in 1961. The
Secretary also has not presented a VA Office of General Counsel interpretation supporting the view
represented in his counsel's briefing.
Rather, the deputy director of the Office of Regulation Policy and Management for the
Department of Veterans Affairs submitted a statement to the effect that he understands that
delegation of authority to award an extraschedular evaluation on a multiple-disability basis was not
the intent behind § 3.321(b), and he is working on a rewrite of the regulation to make it clear that
an extraschedular evaluation on a multiple-disability basis is not authorized. With due respect, the
statement submitted is more persuasive of an effort to try and change the regulation (unsuccessfully
to date, see supra note 4) than to clarify it, and, in any event, is not persuasive in light of the
regulation's plain language, and the other factors discussed throughout my dissent.
31
Similarly, even assuming arguendo that there is a "current" practice of excluding
extraschedular consideration for veterans with earnings impairment due to collective disabilities,
such a practice cannot serve to change a regulation where the regulation plainly states the opposite.
There are specific publication and opportunity-to-be-heard requirements associated with modifying
a regulation. 38 U.S.C. § 501 (VA rulemaking authority); see also 5 U.S.C. § 553(b) and (c)
(expounding upon specific publication and opportunity-to-be-heard requirements associated with
modifying a regulation). Until such proper modification is undertaken, the regulation plainly
authorizes extraschedular consideration on the total disability picture arising from all of a veteran's
disabilities.
A proper analysis of § 3.321(b) and any VA practice also must keep in perspective the fact
that the authority delegated in § 3.321(b) to the USB or Director is intended to be exercised in the
exceptional case – where there is an exceptional or unusual disability picture such that the general
rating schedule is inadequate to compensate for the average earning capacity impairment due to the
disability or disabilities. Accordingly, the lack of a current practice or recollection of awarding
extraschedular consideration for collective disabilities might be a result of the fact that exceptional
cases are by definition rare.
Thus, in the context of extraschedular evaluation intended for the exceptional or unusual
case, VA practice in actually awarding an extraschedular evaluation, whatever it might be, is not very
helpful in trying to determine the scope of § 3.321(b) and whether it includes authority for the USB
or Director to grant an extraschedular rating to a veteran suffering from multiple disabilities that
might individually be adequately contemplated by the general rating schedule, but collectively result
in a disability picture that fails to adequately compensate for the average earning capacity
impairment due to those disabilities. Accordingly, the contention of Secretary's counsel in his
briefing that the Secretary's practice reflects a grant of authority in § 3.321(b) limited solely to
individual-disability consideration is not persuasive.
Judicial Sanction
The Secretary's briefing also argues that this Court has sanctioned a practice of the Board
referring cases for extraschedular consideration based only on earnings impairment due to a single
32
disability, because the word "disability" – and not "disabilities" – was used in Thun, 22 Vet.App. at
115. The briefing also suggests that Thun's identification of a three-step analysis for determining
whether referral for extraschedular consideration is warranted indicates that such consideration is
limited to individual-disability evaluation. These arguments are misplaced; Thun involved a single
disability, and the issue of whether § 3.321(b)(1) envisions potential awards of extraschedular
consideration based on cumulative disabilities that was not before, and not addressed by, the Court
in Thun.
Moreover, although counsel for the Secretary and the majority are correct that the Court has
never explicitly adopted the view expressed by Judge Steinberg in his separate statement in
Brambley v. Principi, 17 Vet.App. 20, 24 (2003) (noting that § 3.321(b)(1) envisions extraschedular
consideration on a cumulative-disabilities basis), the Court has never expressed disagreement with
it either. Indeed, the majority in Brambley expressed no disagreement with Judge Steinberg's view,
and, in fact, noted that an extraschedular-evaluation adjudication, like an adjudication for TDIU,
"require[s] a complete picture of the appellant's service-connected disabilities and their effect on his
employability." 17 Vet.App. at 26. Also, in Vazquez-Flores v. Shinseki, 24 Vet.App. 94, 108
(2010), in the context of not finding Board error as to denial of referral for extraschedular
consideration for an individual disability, the Court remanded that matter because the Board had
erred in denying service connection for another disability. Although not explicitly stated, the action
taken in Vazquez-Flores indicates an understanding that, if the second disability were granted service
connection on remand, consideration of an extraschedular evaluation might be warranted based on
both disabilities, and remand on that issue also was warranted so the Board could address it as
needed.
Regardless of the lack of explicit caselaw on the issue, it is clear that when a claimant
requests referral for an extraschedular evaluation, or the record evidence reasonably raises possible
entitlement to such referral, the Board is required to address whether referral for an extraschedular
evaulation is warranted on both an individual- and collective-disability basis, and, if not referred,
provide the reasons or bases for the non-referral decision.
33
Inability to Implement
The Secretary's briefing also asserts an inability to implement extraschedular evaluation
consideration on a multiple-disability basis, but this argument is perplexing. The Secretary routinely
adjudicates possible entitlement to TDIU, whether predicated on an individual -or
collective-disability basis. There is no reason why he cannot do so for extraschedular evaluation.
Indeed, the Court has noted the similarities in the two evaluations and the fact that both are
predicated on a complete picture of a veteran's service-connected disabilities and their effect on
employment. See Brambley, 17 Vet.App. at 24. Compare 38 C.F.R. § 4.16 (2012) (TDIU predicated
on inability "to secure or follow a substantially gainful occupation"), with § 3.321 (extraschedular
consideration authorized when there is "marked interference with employment" such that the general
rating schedule does not compensate for "average earning capacity impairment"). Moreover,
although the two are not inextricably intertwined in all cases, a remand for further development and
adjudication of TDIU can warrant remand on the issue of an extraschedular rating.15 See Brambley,
supra. This is because both are predicated on the veteran's complete disability picture, with a focus
on occupational difficulties, although an award of TDIU involves a higher degree of occupational
difficulty ("unemployability"). Id.
Accordingly, there should be no concern that the rating officials, Board, USB, or Director
– all of whom assess the complete disability picture when evaluating TDIU – lack the ability to
assess whether a disability picture arising from collective disabilities is exceptional or unusual as
reflected by the governing norm of a marked interference on employment or frequent hospitalization,
such that the schedule does not accord justice to the veteran. To the extent needed, I have every
confidence that the Secretary and Board Chairman could provide the necessary training to
accomplish the task.
In sum, although implementation impossibility can be a basis for rejecting the plain-language
reading of the Secretary's regulation, this is not a case where implementation is impossible or so
difficult as to be effectively impossible. See Vermiglio v. Group Health Plan, Inc., No.
15
In contrast, remand for development and adjudication of possible entitlement to an extraschedular evaluation
generally does not warrant remand for TDIU. Kellar v. Brown, 6 Vet.App. 157, 162 (1994).
34
4:07ev0282TCM, 2008 WL 4402227, at *7 (E.D. Mo. 2008) ("[A]ny difficulty in implementing the
regulation [does not] confer a different meaning than the one made plain by the language of the
regulation."); Abdel-Fattah v. Comm'r Internal Revenue, 134 T.C. 190, 209 (2010) ("If the rule that
Congress enacted . . . is problematic [or difficult to implement], then the problems can be addressed
not by corrective interpretation but only by legislative amendment.").
Challenging Final Decisions and Conflating Extraschedular Consideration and TDIU
The Secretary's briefing also expressed concern that rejecting a narrow view of the authority
delegated in § 3.321(b) might result in (1) numerous challenges to final decisions that have denied
referral for an extraschedular evaluation under § 3.321(b) based on a misreading of the regulation
and (2) extraschedular consideration under § 3.321(b)(1) being conflated with TDIU under § 4.16.
As to the first contention, unappealed VA decisions generally are final unless (1) a claim is reopened
by the submission of new and material evidence or (2) there is clear and unmistakable error (CUE)
in the decision, which is demonstrated by a claimant's showing an undebatable error, the correction
of which would manifestly change the outcome. See, e.g., DiCarlo v. Nicholson, 20 Vet.App. 52,
55 (2006) (noting that res judicata "requires that there be only one valid decision on any issue or
claim" and that exceptions to the rule of finality include a motion for revision on the basis of CUE,
Board reconsideration, Board correction of obvious errors sua sponte, and reopening the claim based
on new and material evidence); Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc) ("[c]lear
and unmistakable error . . . must be the sort of error which, had it not been made, would have
manifestly changed the outcome at the time it was made." (internal quotation marks omitted)).
Moreover, duty-to-assist failures, including the failure to properly develop a claim, do not
constitute CUE, see Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004) (failure to assist
in developing evidentiary record cannot constitute CUE); Cook v. Principi, 318 F.3d 1334, 1341
(Fed. Cir. 2002) (breach of duty to assist cannot constitute CUE), and an award based on a reopened
claimed has an effective date tied to the date of the claim to reopen, 38 U.S.C. § 5110(a); 38 C.F.R.
§ 3.400 (2012). Accordingly, the Secretary's concern that there would be numerous successful
challenges to final decisions is unfounded. On the other hand, should the high standard of CUE be
met or new and material evidence submitted, setting aside finality or reopening the claim would be
35
consistent with – indeed, in full compliance with – congressional direction, and, in that context, the
justice envisioned by § 3.321(b)(1) would be accorded.
The Secretary's second contention – that a delegation of authority to the USB or Director to
grant an extraschedular rating on a multiple-disability basis essentially conflates extraschedular
consideration with TDIU – is a red herring. The regulations and caselaw are clear that TDIU and
extraschedular evaluation consideration have separate criteria. Extraschedular consideration is
available when a veteran's service-connected disabilities have, inter alia, a marked interference with
employment such that the schedular ratings are not adequate, and TDIU is available when the veteran
essentially is unemployable (i.e., "unable to secure or follow a substantially gainful occupation") as
a result of his service-connected disabilities. See Kellar, 6 Vet.App. at 162; Standon v. Brown,
5 Vet.App. 563, 564-70 (1993) (issue of extraschedular evaluation is separate from issue of TDIU
rating); 38 C.F.R. §§ 3.321(b), 4.16; see also 38 C.F.R. §§ 4.1, 4.2 (2012), 4.10 (2012).16
Application to the Present Case
Mr. Johnson has multiple service-connected disabilities, including rheumatic heart disease
and a right-knee disorder, for which he was denied referral for extraschedular consideration on an
individual basis. The Board remanded a claim for an increase in disability compensation for his left
knee because treatment records addressing Mr. Johnson's left knee were not previously considered
by the VA RO, and the Board also remanded the issue of TDIU on a collective disability basis. In
that context, and because 38 C.F.R. § 3.321(b) provides for extraschedular consideration on a
collective, as well as individual, disability basis, the Board also should have remanded for further
adjudication the issue of entitlement to an extraschedular evaluation on a collective disability basis.
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board's statement "must be
adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to
facilitate review in this Court"); Schafrath v. Derwinski, 1 Vet.App. 589 (1991) (Board must
16
Of course, there are similarities in the criteria for each benefit, such that the record evidence in a case might,
and frequently will, require discussion of both. See Thun, 22 Vet.App. at 117 (noting that marked interference with
employment as required for extraschedular consideration is a lesser standard to meet than TDIU, which refers to
obtaining or retaining employment in general); Brambley, supra; see also VAGen. Coun. Prec. 6-1996 (Aug. 16, 1996)
(recognizing the possibility that circumstances may require a discussion of both extraschedular consideration and
entitlement to TDIU) (citing Moyer v. Derwinski, 2 Vet.App 289, 293 (1992)).
36
consider and discuss all applicable provisions of law and regulation where they are made "potentially
applicable through the assertions and issues raised in the record").
The Board's error warrants either modification of the Board's decision to reflect a remand for
the RO to consider referral for an extraschedular evaluation on a multiple-disability basis, or a
remand of the matter so that the Board can modify its decision to reflect a remand for the RO to
consider referral for an extraschedular evaluation on a multiple-disability basis. 38 U.S.C. § 7252(Court can, inter alia, modify Board decisions).
II. SECOND ERRONEOUS CONCLUSION
The majority find error in the fact that the Board did not "discuss whether the rating schedule
criteria regarding instability and limitation of flexion or extension reasonably describe Mr. Johnson's
right knee disability." Ante at 12. Compare Thun, 22 Vet.App. at 115 (discussing three steps for
analyzing if referral for an extraschedular disability rating is warranted), with Anderson v. Shinseki,
22 Vet.App. 423, 427 (2009) (clarifying that, although the Court in Thun identified three "steps,"
they can be treated as necessary "elements" for an extraschedular rating). Although the majority also
find no prejudice arising from this purported error, I raise the matter to note that there is no legal
requirement that the Board address step one – or element one – of the Thun/Anderson analysis in
order to provide the statutorily required reasons or bases for its decision. The legal requirements
with regard to the Board's statement are that the Board (1) address the material issues raised by the
appellant or reasonably raised by the evidence, Robinson v. Peake, 21 Vet.App. 545, 552 (2008), (2)
explain its rejection of materially favorable evidence, Thompson v. Gober, 14 Vet.App. 187, 188
(2000), (3) discuss potentially applicable laws, Schafrath, supra, and (4) otherwise provide an
explanation for its decision that is understandable and facilitative of judicial review, Allday, supra.
To hold otherwise puts form over substance, and can exacerbate the "hamster wheel reputation of
veterans law." Massie v. Shinseki, 25 Vet. App. 123, 128 (2011).
Pursuant to Thun, referral for an extraschedular disability rating is not warranted if the rating
schedule contemplates the veteran's disability picture, which Thun refers to as step one. 22 Vet. App.
at 115-16. However, referral also is not warranted if the veteran's disability picture is not exceptional
37
or unusual, with the governing norm being whether there is a marked interference with employment
or frequent hospitalization, which Thun refers to as step two. Id.; see also Anderson, supra (noting
that the steps are, in fact, elements); 38 C.F.R. § 3.321(b). Thus, although the majority purport to
find error because the Board did not discuss Thun's step one, their assertion of error is overstated,
as evidenced by the fact they subsequently find no prejudice because Mr. Johnson did not
demonstrate that the Board's analysis of Thun's step two was in error – a finding the majority could
not make if there was a legal or otherwise necessary reason to mandate discussion of Thun step one
before rendering a decision on whether referral for extraschedular consideration is warranted. See
Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (noting that "it is not the role of
the Veterans Court" to find "on its own" that a disability was not "exceptional or unusual" under 38
C.F.R. § 3.321(b)(1)).
In sum, the Board's statement of reasons or bases for denying referral for extraschedular
consideration on an individual disability basis for rheumatic heart disease and a right-knee disability
is fully understandable and facilitative of judicial review, and comports with all legal requirements.
See Allday, supra.
III. CONCLUSION
Accordingly, I would modify the Board decision to reflect a remand for the RO to consider
referral for an extraschedular evaluation on a multiple-disability basis, or set aside the Board
decision and remand for the Board to modify its decision to reflect a remand for the RO to consider
referral for an extraschedular evaluation on a multiple-disability basis. That part of the Board
decision otherwise on appeal I would affirm.
DAVIS, Judge, with whom BARTLEY, Judge, joins, dissenting: While we agree with the
very thorough and well-reasoned dissent of our colleague, the Chief Judge, in his analysis of
38 C.F.R. § 3.321(b), we write separately to emphasize that our dissent is grounded in the conviction
that the language of § 3.321(b) unambiguously refutes the interpretation advanced by the Secretary.
By employing the plural of the noun "disability," the plain and unambiguous meaning of this
regulation allows certain VA officials, in "exceptional cases" when the rating schedule is otherwise
38
inadequate, to assess the impairment in earning capacity due to the collective effect of multiple
service-connected disabilities. The regulation indicates that in the extraschedular assessment, it is
necessary to consider the aggregate effect of service-connected disabilities–the "disability picture."
The regulation's use of "disability picture" is critical because multiple disabilities may collectively
affect earning capacity when each disability considered individually may not.
The clear directive of the unambiguous regulatory language must be given effect.
Lengerich v. Dep't of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006) (citing Bowles v. Seminole Rock
& Sand Co., 325 U.S. 410, 414-15, (1945) (focusing on the "plain words of the regulation" to
ascertain the meaning of the regulation)); Trilles v. West, 13 Vet.App. 314, 321 (2000) (where
language conveys a plain meaning the Court must give effect to that meaning); see also
Perrin v. United States, 444 U.S. 37, 42 (1979) (interpretation guided by ordinary common meaning
of words); Tesoro Haw. Corp. v. United States, 405 F.3d 1339, 1346 (Fed. Cir. 2005) (construing
a regulation like a statute by "ascertaining its plain meaning"). Moreover, the Secretary's
interpretation of his own regulation is not entitled to deference when, as in this case, it conflicts with
the plain meaning and words of the regulation. See Christensen v. Harris Cnty., 529 U.S. 576, 588
(2000) (granting deference to agency interpretation plainly contradicted by unambiguous regulatory
language would be "to permit the agency, under the guise of interpreting a regulation, to create de
facto a new regulation"); Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)
(affording no deference to agency interpretation when in conflict with unambiguous text);
Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (applying the rules of statutory interpretation
to regulations); DeLuca v. Brown, 8 Vet.App 202, 207 (1995) (holding that VA interpretation of
regulation conflicting with plain meaning not entitled to deference).
Not only is the regulatory language unambiguous, we fault the majority's assertion that the
Secretary's "disability-by-disability interpretation of § 3.321(b)" is more "consistent with the
statutory and regulatory scheme," ante at 9. See Smith v. United States, 508 U.S. 223 (1993)
(language cannot be interpreted apart from context). The foundation principle for evaluating
disabilities is to compensate for the average effect of service-connected disabilities on the ability to
earn a living. See 38 C.F.R. § 4.1 (2012). The rating schedule addresses individual disabilities, and
through a combined rating table it provides for combining multiple disability evaluations. 38 C.F.R.
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§ 4.25 (2012) (combining disability ratings). Significantly, the evaluation process in addition
requires that VA collectively evaluate service-connected disabilities to determine whether together
they result in the inability to earn a living wage. 38 C.F.R. §§ 4.16 (2012) (providing total disability
ratings based on unemployability (TDIU)). In 2005, approximately 220,000 veterans were receiving
TDIU benefits, the award of which required collective evaluation. GAO, VA SHOULD IMPROVE ITS
MANAGEMENT OF INDIVIDUAL UNEMPLOYABILITY BENEFITS BY STRENGTHENING CRITERIA,
GUIDANCE, AND PROCEDURES 2, 41 (GAO-06-309, 2006). This number illustrates that the VA
disability evaluation process frequently requires that it evaluate multiple disabilities collectively in
a manner clearly beyond the application of fixed disability percentages for individual disabilities and
tables for combining those percentages. Evaluating the cumulative effect of several
service-connected disabilities together is therefore in no way outside the ability of VA raters and a
"disability-by-disability interpretation of § 3.321(b)" is no more "consistent with the statutory and
regulatory scheme," ante at 9, than the cumulative approach that is also extant in VA rating
procedures via TDIU consideration.
The history of the regulation further clarifies that VA revised its regulation "to accord justice"
in the "exceptional case" that presents an "exceptional or unusual disability picture," and allow
certain VA officials to approve an extraschedular evaluation for "a disability or disabilities."
38 C.F.R. § 3.321(b)(1) (2012); General Rating Considerations, Exceptional Cases, 26 Fed. Reg.
1561, 1583 (Feb. 24, 1961) (codifying VA Regulation 1321 and adding language that an
extraschedular rating could be awarded based on the service-connected "disability or disabilities")
(subsequently codified at 38 C.F.R. § 3.321(b)).
In sum, the unambiguous language of the regulation provides that when the rating schedule
is inadequate to evaluate a single service-connected disability or multiple service-connected
disabilities, certain VA officials are authorized to approve an extraschedular evaluation that
considers the veteran's complete disability picture. Such an evaluation may involve assessing the
exceptional or unusual impact of each service-connected disability individually, but, according to
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the regulation, it may also involve considering the collective interaction of multiple
service-connected disabilities. We therefore respectfully dissent from the majority's affirmance of
the Secretary's restrictive interpretation, which is contrary to the clear and unambiguous regulatory
language.
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