Claims Granted Based on New Presumptive Agent Orange Conditions
Data Current through February 7, 2011
Total Claims Granted 33,193
Retroactive Compensation Paid $621,009,719
Average Award $18,709
==================================================
As of Dec 17, 2010:
claim granted 18,829,
total of awards: $320,964,955,
average award: $17,046
Thursday, February 10, 2011
Boston-RO 35% Error Rate in Disability Cliam Processing, VAOIG Report 10-03564-86
"Overall, VARO staff did not accurately process 42 (35 percent) of the 120 disability claims reviewed."
Link to Full Report at Report Number 10-03564-86, 2/10/2011
Summary of Inspection of the VA Regional Office Boston, MA
Report Number 10-03564-86, 2/10/2011
The Benefits Inspection Division conducts on site inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center operations.
The Boston VARO correctly processed post-traumatic stress disorder disability claims. Management ensured staff followed the Veterans Benefits Administration policy to establish correct dates of claims in the electronic record. Further, staff corrected all errors that Veterans Benefits Administration’s Systematic Technical Accuracy Review program identified. VARO management needs to improve the control and accuracy of processing temporary 100 percent evaluations, traumatic brain injury claims, and herbicide exposure-related claims. Overall, VARO staff did not accurately process 42 (35 percent) of the 120 disability claims reviewed. Management also needs to strengthen controls over recording Notices of Disagreement for appealed claims, completing Systematic Analyses of Operations, and processing mail and final competency determinations. We recommended that Boston VARO management review all temporary 100 percent evaluations to determine if reevaluations are required and take appropriate action. Management needs to implement controls to ensure Veterans Service Center staff establishes diaries to request medical examinations for temporary 100 percent disability reevaluations. Further, we recommended management provide refresher training on the proper procedures for processing traumatic brain injury and herbicide exposure-related disability claims, and implement a plan to have an additional level of review prior to finalizing claims decisions. We also recommended that Boston VARO management strengthen controls to ensure timely establishment of Notices of Disagreement in the Veterans Appeals Control and Locator System. Additionally, we recommended that Boston VARO management implement plans to ensure timely and complete preparation of Systematic Analyses of Operations, and accurate and timely processing of incoming mail. The Director of the Boston VARO concurred with all recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.
Link to Full Report at Report Number 10-03564-86, 2/10/2011
Summary of Inspection of the VA Regional Office Boston, MA
Report Number 10-03564-86, 2/10/2011
The Benefits Inspection Division conducts on site inspections at VA Regional Offices (VAROs) to review disability compensation claims processing and Veterans Service Center operations.
The Boston VARO correctly processed post-traumatic stress disorder disability claims. Management ensured staff followed the Veterans Benefits Administration policy to establish correct dates of claims in the electronic record. Further, staff corrected all errors that Veterans Benefits Administration’s Systematic Technical Accuracy Review program identified. VARO management needs to improve the control and accuracy of processing temporary 100 percent evaluations, traumatic brain injury claims, and herbicide exposure-related claims. Overall, VARO staff did not accurately process 42 (35 percent) of the 120 disability claims reviewed. Management also needs to strengthen controls over recording Notices of Disagreement for appealed claims, completing Systematic Analyses of Operations, and processing mail and final competency determinations. We recommended that Boston VARO management review all temporary 100 percent evaluations to determine if reevaluations are required and take appropriate action. Management needs to implement controls to ensure Veterans Service Center staff establishes diaries to request medical examinations for temporary 100 percent disability reevaluations. Further, we recommended management provide refresher training on the proper procedures for processing traumatic brain injury and herbicide exposure-related disability claims, and implement a plan to have an additional level of review prior to finalizing claims decisions. We also recommended that Boston VARO management strengthen controls to ensure timely establishment of Notices of Disagreement in the Veterans Appeals Control and Locator System. Additionally, we recommended that Boston VARO management implement plans to ensure timely and complete preparation of Systematic Analyses of Operations, and accurate and timely processing of incoming mail. The Director of the Boston VARO concurred with all recommendations. Management’s planned actions are responsive and we will follow up as required on all actions.
Public Comment on Revision of Rules of Practice, U.S. Court of Appeals Veterans Claims
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
MISC. NO. 03-11
IN RE: RULES OF PRACTICE AND PROCEDURE
Before KASOLD, Chief Judge, and HAGEL, MOORMAN,
LANCE, DAVIS, and SCHOELEN, Judges.
O R D E R
Pursuant to the authority of 38 U.S.C. § 7264(a) and consistent with 28 U.S.C. § 2071(b),
the Court has determined that its Rules of Practice and Procedure (Rules) need to be revised. In
reaching this determination, the Court has benefited from the views of its Rules Advisory
Committee. Accordingly, it is
ORDERED that the attached proposed revisions to the Court's Rules are hereby published
for public comment for a period of 60 days. Comments must be submitted to the Clerk of the Court
by April 12, 2011, at comments@uscourts.cavc.gov or 625 Indiana Avenue, NW, Suite 900,
Washington, DC 20004.
DATED: February 10, 2011 BY THE COURT:
BRUCE E. KASOLD
Chief Judge
Attachments
1. Proposed Revised Rules
http://www.uscourts.cavc.gov/documents/Attachment_1_Proposed_Revised_Rules.pdf
2. Proposed Revised Rules with Changes Shown
http://www.uscourts.cavc.gov/documents/Attachment_2_Proposed_Revised_Rules_with_Changes_Shown.pdf
3. Sample Format for Record Citations
http://www.uscourts.cavc.gov/documents/Attachment_3_Sample_Format_for_Record_Citations.pdf
4. Proposed Alternative Revised Rules 31, 33, and 39
http://www.uscourts.cavc.gov/documents/Attachment_4_Proposed_Alternative_Revised_Rules_31_33_and_39.pdf
5. Rationales for Revisions
http://www.uscourts.cavc.gov/documents/Attachment_5_Rationales_for_Revisions.pdf
MISC. NO. 03-11
IN RE: RULES OF PRACTICE AND PROCEDURE
Before KASOLD, Chief Judge, and HAGEL, MOORMAN,
LANCE, DAVIS, and SCHOELEN, Judges.
O R D E R
Pursuant to the authority of 38 U.S.C. § 7264(a) and consistent with 28 U.S.C. § 2071(b),
the Court has determined that its Rules of Practice and Procedure (Rules) need to be revised. In
reaching this determination, the Court has benefited from the views of its Rules Advisory
Committee. Accordingly, it is
ORDERED that the attached proposed revisions to the Court's Rules are hereby published
for public comment for a period of 60 days. Comments must be submitted to the Clerk of the Court
by April 12, 2011, at comments@uscourts.cavc.gov or 625 Indiana Avenue, NW, Suite 900,
Washington, DC 20004.
DATED: February 10, 2011 BY THE COURT:
BRUCE E. KASOLD
Chief Judge
Attachments
1. Proposed Revised Rules
http://www.uscourts.cavc.gov/documents/Attachment_1_Proposed_Revised_Rules.pdf
2. Proposed Revised Rules with Changes Shown
http://www.uscourts.cavc.gov/documents/Attachment_2_Proposed_Revised_Rules_with_Changes_Shown.pdf
3. Sample Format for Record Citations
http://www.uscourts.cavc.gov/documents/Attachment_3_Sample_Format_for_Record_Citations.pdf
4. Proposed Alternative Revised Rules 31, 33, and 39
http://www.uscourts.cavc.gov/documents/Attachment_4_Proposed_Alternative_Revised_Rules_31_33_and_39.pdf
5. Rationales for Revisions
http://www.uscourts.cavc.gov/documents/Attachment_5_Rationales_for_Revisions.pdf
Delays, Remands, Delays, Federal Circuit Understands Veterans Frustration
Veterans know the social, economic and psychological cost of endless delays, the question is what is the best way to get the Courts onboard, to have the Courts issue decisions that will put an end to these endless delays, the hampster wheel of remands, the loss of records, etc.
Excerpt From Decision below:
Already sensitized by the VA’s feckless attempts to resolve his claim, Mr. Moore feels mired in an infinite loop of remand, readjudicate, repeat.
We believe, however, that when the Veterans Court reviewed his case, Mr. Moore obtained the relief he requested in his petition.
feck·less/ˈfeklis/Adjective
1. (of a person) Lacking in efficiency or vitality.
2. Unthinking and irresponsible.
===========================================================
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
__________________________
MELVIN MOORE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2011-7004
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in case No. 10-762, Judge William A. Moorman.
___________________________
Decided: February 10, 2011
___________________________
MELVIN MOORE, Port Charlotte, Florida, pro se.
DOUGLAS T. HOFFMAN, Attorney, Commercial Litiga-tion Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and FRANKLIN E.
MOORE v. DVA 2
WHITE, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Coun-sel, United States Department of Veterans Affairs, of Washington, DC.
__________________________
Before GAJARSA, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Mr. Melvin Moore appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) dismissing his petition for a writ of mandamus as moot. Mr. Moore is justifiably frustrated with the fact that the VA has not resolved his claim, which was filed over a decade ago. Because the Veterans Court did not abuse its discretion in dismissing Mr. Moore’s petition, however, we affirm.
Mr. Moore underwent hip surgery in 1997 at the Vet-erans Affairs Medical Center (VAMC) in Detroit, Michi-gan. Because of recurring problems he alleges were caused by improper care at the VAMC, Mr. Moore filed a claim with the VA in 1999. Mr. Moore’s claim was appar-ently rejected, appealed to the Board of Veterans Appeals (Board), and then remanded to the Regional Office (RO) in 2002 for reasons not on the record before this court. In 2003, a representative from the Disabled American Vet-erans informed Mr. Moore that his claim was ready for submission to the Board of Appeals for the second time. Because the VA failed to obtain the necessary records from the VAMC in Detroit, however, the Board again remanded Mr. Moore’s claim in 2006. Back before the Board in 2008, the VA again failed to obtain the necessary records from the VAMC. In addition, the VA’s examina-tion report for its December 2006 examination of Mr. Moore was incomplete. Explaining that its 2006 remand
3 MOORE v. DVA
instructions were not properly carried out, the Board again remanded Mr. Moore’s case to the RO to obtain the required records from the VAMC, give Mr. Moore a com-plete examination, and readjudicate Mr. Moore’s claim. Over the next year and a half, the VA obtained the neces-sary records and again examined Mr. Moore. On January 29, 2010, Mr. Moore received a letter from the VA stating that the VA had “a great number of claims” pending and that action on his claim could be delayed.
Mr. Moore filed his petition for mandamus in Febru-ary of 2010, asking the Veterans Court to review his case. On April 2, the Veterans Court asked Mr. Moore to pro-vide the most recent adjudication of his claim. Subse-quently, Mr. Moore provided the Veterans Court with a copy of the Board’s 2008 remand. Mr. Moore also pro-vided copies of the VA’s responses to his most recent records requests. In its response, the RO directed Mr. Moore to send his record request to the VA Appeals Management Center (AMC). When Mr. Moore contacted the AMC, however, it had only the 2008 Board remand—and told Mr. Moore to request his remaining records from the RO.
On April 16, 2010, the Veterans Court determined that “it is unclear which VA office has the petitioner’s claims file and what work is being done on his long-pending claim.” Accordingly, the Veterans Court ordered the VA to file a response to Mr. Moore’s petition explain-ing the status of Mr. Moore’s claim and its plan to resolve it. In response, the VA explained that, since 2008, Mr. Moore’s claim has proceeded without substantial delay and is now on the Board’s docket. Reasoning that Mr. Moore had “obtained the relief sought, i.e., the completion of proceedings on remand as directed by the Board in its October 2008 remand decision,” the Veterans Court
MOORE v. DVA 4
dismissed Mr. Moore’s petition as moot. Mr. Moore appeals, and we have jurisdiction pursuant to 38 U.S.C. § 7292.
Congress granted this court only limited jurisdiction over veterans cases. In particular, this court has exclusive jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret con-stitutional and statutory provisions, to the extent pre-sented and necessary to a decision.” 38 U.S.C. § 7292(c). We may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case, except to the extent presented by a constitutional issue. Id. § 7292(d)(2). “There is no indication, however, that in thus limiting our jurisdiction, Congress intended to insulate from judicial review [the Veterans Court’s] ruling[s] on mandamus petitions.” Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir. 2002).
On appeal, Mr. Moore explains: “Plain and simple, after 11 years, I want a decision.” To that end, he asks us to give the Board a time limit in which to render its decision. Mr. Moore’s frustration is understandable. On the record before this court, it appears that the VA’s inability to produce its own records resulted in remand after remand, delaying Mr. Moore’s claim for years. As recently as 2010, the VA gave Mr. Moore the classic “run-around” in response to a simple records request. Already sensitized by the VA’s feckless attempts to resolve his claim, Mr. Moore feels mired in an infinite loop of remand, readjudicate, repeat.
We believe, however, that when the Veterans Court reviewed his case, Mr. Moore obtained the relief he requested in his petition. The Secretary assures us that
MOORE v. DVA
5
the VA has obtained the required records, and that the Board is now considering Mr. Moore’s “expedited appeal.” As such, we affirm the Veterans Court’s dismissal of Mr. Moore’s petition as moot.
AFFIRMED
COSTS
No costs.
Excerpt From Decision below:
Already sensitized by the VA’s feckless attempts to resolve his claim, Mr. Moore feels mired in an infinite loop of remand, readjudicate, repeat.
We believe, however, that when the Veterans Court reviewed his case, Mr. Moore obtained the relief he requested in his petition.
feck·less/ˈfeklis/Adjective
1. (of a person) Lacking in efficiency or vitality.
2. Unthinking and irresponsible.
===========================================================
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
__________________________
MELVIN MOORE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2011-7004
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in case No. 10-762, Judge William A. Moorman.
___________________________
Decided: February 10, 2011
___________________________
MELVIN MOORE, Port Charlotte, Florida, pro se.
DOUGLAS T. HOFFMAN, Attorney, Commercial Litiga-tion Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and FRANKLIN E.
MOORE v. DVA 2
WHITE, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Coun-sel, United States Department of Veterans Affairs, of Washington, DC.
__________________________
Before GAJARSA, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Mr. Melvin Moore appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) dismissing his petition for a writ of mandamus as moot. Mr. Moore is justifiably frustrated with the fact that the VA has not resolved his claim, which was filed over a decade ago. Because the Veterans Court did not abuse its discretion in dismissing Mr. Moore’s petition, however, we affirm.
Mr. Moore underwent hip surgery in 1997 at the Vet-erans Affairs Medical Center (VAMC) in Detroit, Michi-gan. Because of recurring problems he alleges were caused by improper care at the VAMC, Mr. Moore filed a claim with the VA in 1999. Mr. Moore’s claim was appar-ently rejected, appealed to the Board of Veterans Appeals (Board), and then remanded to the Regional Office (RO) in 2002 for reasons not on the record before this court. In 2003, a representative from the Disabled American Vet-erans informed Mr. Moore that his claim was ready for submission to the Board of Appeals for the second time. Because the VA failed to obtain the necessary records from the VAMC in Detroit, however, the Board again remanded Mr. Moore’s claim in 2006. Back before the Board in 2008, the VA again failed to obtain the necessary records from the VAMC. In addition, the VA’s examina-tion report for its December 2006 examination of Mr. Moore was incomplete. Explaining that its 2006 remand
3 MOORE v. DVA
instructions were not properly carried out, the Board again remanded Mr. Moore’s case to the RO to obtain the required records from the VAMC, give Mr. Moore a com-plete examination, and readjudicate Mr. Moore’s claim. Over the next year and a half, the VA obtained the neces-sary records and again examined Mr. Moore. On January 29, 2010, Mr. Moore received a letter from the VA stating that the VA had “a great number of claims” pending and that action on his claim could be delayed.
Mr. Moore filed his petition for mandamus in Febru-ary of 2010, asking the Veterans Court to review his case. On April 2, the Veterans Court asked Mr. Moore to pro-vide the most recent adjudication of his claim. Subse-quently, Mr. Moore provided the Veterans Court with a copy of the Board’s 2008 remand. Mr. Moore also pro-vided copies of the VA’s responses to his most recent records requests. In its response, the RO directed Mr. Moore to send his record request to the VA Appeals Management Center (AMC). When Mr. Moore contacted the AMC, however, it had only the 2008 Board remand—and told Mr. Moore to request his remaining records from the RO.
On April 16, 2010, the Veterans Court determined that “it is unclear which VA office has the petitioner’s claims file and what work is being done on his long-pending claim.” Accordingly, the Veterans Court ordered the VA to file a response to Mr. Moore’s petition explain-ing the status of Mr. Moore’s claim and its plan to resolve it. In response, the VA explained that, since 2008, Mr. Moore’s claim has proceeded without substantial delay and is now on the Board’s docket. Reasoning that Mr. Moore had “obtained the relief sought, i.e., the completion of proceedings on remand as directed by the Board in its October 2008 remand decision,” the Veterans Court
MOORE v. DVA 4
dismissed Mr. Moore’s petition as moot. Mr. Moore appeals, and we have jurisdiction pursuant to 38 U.S.C. § 7292.
Congress granted this court only limited jurisdiction over veterans cases. In particular, this court has exclusive jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret con-stitutional and statutory provisions, to the extent pre-sented and necessary to a decision.” 38 U.S.C. § 7292(c). We may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case, except to the extent presented by a constitutional issue. Id. § 7292(d)(2). “There is no indication, however, that in thus limiting our jurisdiction, Congress intended to insulate from judicial review [the Veterans Court’s] ruling[s] on mandamus petitions.” Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir. 2002).
On appeal, Mr. Moore explains: “Plain and simple, after 11 years, I want a decision.” To that end, he asks us to give the Board a time limit in which to render its decision. Mr. Moore’s frustration is understandable. On the record before this court, it appears that the VA’s inability to produce its own records resulted in remand after remand, delaying Mr. Moore’s claim for years. As recently as 2010, the VA gave Mr. Moore the classic “run-around” in response to a simple records request. Already sensitized by the VA’s feckless attempts to resolve his claim, Mr. Moore feels mired in an infinite loop of remand, readjudicate, repeat.
We believe, however, that when the Veterans Court reviewed his case, Mr. Moore obtained the relief he requested in his petition. The Secretary assures us that
MOORE v. DVA
5
the VA has obtained the required records, and that the Board is now considering Mr. Moore’s “expedited appeal.” As such, we affirm the Veterans Court’s dismissal of Mr. Moore’s petition as moot.
AFFIRMED
COSTS
No costs.
Single Judge Application, Extra-Schedular Three Step Inquiry, Thun v. Peake, 22 Vet.App.
Excerpt from Decision below:
"The Court agrees with the appellant's argument that the Board should have
discussed the possibility of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(2010).
Section 3.321(b) provides that [r]atings 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.
38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court concluded that "
determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."
First, the Board or the regional office (RO) must determine whether the
evidence presents "such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. To do this, the Board or the RO must determine whether the criteria
2
found in the rating schedule reasonably describe the claimant's disability level and symptomatology.Id. If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required.Id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the RO or the Board move to the second prong of the analysis. Id.
Under the second prong, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Id. at 116. In sum, if the Board or RO determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step – to determine whether, to accord justice, an extraschedular rating must be assigned. Id.
The Court has circumscribed its review in cases where the appellant did
not explicitly raise the issue of extraschedular rating below. "[T]he Court's review is limited to the facts found by the Board and to a determination of whether, based on those facts, a claim for § 3.321(b)(1) extraschedular consideration was reasonably raised and should have been discussed." Dingess v.
Nicholson, 19 Vet.App. 473, 499 (2006) (emphasis added). Although it does
not appear as though the appellant ever specifically asked the Board to consider § 3.321(b), she has repeatedly referred to difficulties that her condition causes her with employment. See R. at 343 (appellant's May 2006 VA Form 9, which includes her statement that pain and mobility from her disability "impact me on a daily basis, and also at my present place of employment"); 370 (appellant's July 2005 NOD in which she states that her bilateral heel spurs/arch collapse "has impacted me greatly requiring me to terminate present employment and seek employment which would allow me to be off my feet due to intermittent pain and locking"). The appellant is currently in receipt of a noncompensable disability rating under DC 7256, flatfoot, aquired. R. at 10. This rating is appropriate for a mild
condition with "symptoms relieved by built-up shoe or arch support." 38 C.F.R. 4.71a, DC 5276 (2010). This rating code has been assigned by analogy, and the Court recognizes that rating by analogy is not an exact science. See
3
Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (recognizing that a
disability rated under an analogous rating code will not show all objective criteria of the analogous rating). However, it is not clear that the noncompensable disability rating assigned to the appellant is intended to cover the
interference with employment that she has described throughout the course
of her claim, or that the disability would not have an average impairment to earning capacity.
Further complicating the matter is that the Board's decision contains no discussion regarding the appellant's employment impairment due to this condition. The Court holds that the record reasonably raised the possibility of an extraschedular evaluation pursuant to § 3.321(b), and it was error for the Board not to consider
such an evaluation.
====================================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2040
ROBIN L. GREENE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Robin L. Greene, through counsel, appeals
a March 10, 2008, Board of Veterans' Appeals (Board) decision in which the Board
denied her claim for a compensable disability evaluation for bilateral heel spurs/arch collapse for any period from May 1, 2004. Record (R.) at 12. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed
to discuss a reasonably raised issue of record, the Court will vacate the Board's decision and remand the matter for further proceedings.
The appellant had active service from April 1982 to April 2004. R. at 504-
05. In May2005, she was diagnosed with heel spurs and pes planus. R. at 398. In June 2005, she was awarded entitlement to service connection for bilateral heel spurs/arch collapse and assigned a noncompensable disability rating, effective May 1, 2004. R. at 385-92. In July 2005, she filed a Notice of Disagreement (NOD), arguing in essence that she was entitled to a compensable disability rating for this condition. R. at 370.
In the decision on appeal, the Board determined that the appellant was not
entitled to a compensable disability evaluation for her service-connected bilateral heel spurs/arch collapse. R. at 12. Relying on the results of a May 2005 VA medical examination, the Board found that the appellant's condition was mild and did not give rise to a compensable disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276 (2007). R. at 11.
The appellant raises several arguments on appeal. First, she contends that
the Board failed to comply with its duty to assist by failing to obtain records she had requested. Appellant's Brief (Br.) at 4-6. Next, she asserts that the Board relied on an inadequate medical examination. Id. at 6-8. She argues that the Board failed to consider the possibility of evaluating her condition under a
rating code other than DC 5276, and that the Board should have considered
assigning an extraschedular evaluation. Id. at 8-9. She also appears to argue that the Board improperly characterized her condition as "mild." Id. at 10. The Secretary rebuts these contentions and argues that the Court should affirm the Board's decision. Secretary's Br. at 12.
The Court agrees with the appellant's argument that the Board should have
discussed the possibility of an extraschedular evaluation pursuant to the provisions of38C.F.R. §3.321(b)(2010).
Section 3.321(b) provides that [r]atings 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. 38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court concluded that "
determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."
First, the Board or the regional office (RO) must determine whether the
evidence presents "such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. To do this, the Board or the RO must determine whether the criteria
2
found in the rating schedule reasonably describe the claimant's
disability level and symptomatology. Id. If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required.Id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the RO or the Board move to the second prong of the analysis. Id.
Under the second prong, the RO or the Board must determine whether the
claimant's exceptional disability picture exhibits other related factors such as "
marked interference with employment" and "frequent periods of hospitalization." Id. at 116. In sum, if the Board or RO determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference
with employment or frequent periods of hospitalization, the case must be
referred for completion of the third step – to determine whether, to accord justice, an extraschedular rating must be assigned. Id.
The Court has circumscribed its review in cases where the appellant did
not explicitly raise the issue of extraschedular rating below. "[T]he Court's review is limited to the facts found by the Board and to a determination of whether, based on those facts, a claim for § 3.321(b)(1) extraschedular consideration was reasonably raised and should have been discussed." Dingess v.
Nicholson, 19 Vet.App. 473, 499 (2006) (emphasis added). Although it does
not appear as though the appellant ever specifically asked the Board to consider § 3.321(b), she has repeatedly referred to difficulties that her condition causes her with employment. See R. at 343 (appellant's May 2006 VA Form 9, which includes her statement that pain and mobility from her disability "impact me on a daily basis, and also at my present place of employment"); 370 (appellant's July 2005 NOD in which she states that her bilateral heel spurs/arch collapse "has impacted me greatly requiring me to terminate present employment and seek employment which would allow me to be off my feet due to intermittent pain and locking"). The appellant is currently in receipt of a noncompensable disability rating under DC 7256, flatfoot, aquired. R. at 10. This rating is appropriate for a mild
condition with "symptoms relieved by built-up shoe or arch support." 38 C.F.R. 4.71a, DC 5276 (2010). This rating code has been assigned by analogy, and the Court recognizes that rating by analogy is not an exact science. See
3
Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (recognizing that a
disability rated under an analogous rating code will not show all objective criteria of the analogous rating). However, it is not clear that the noncompensable disability rating assigned to the appellant is intended to cover the
interference with employment that she has described throughout the course
of her claim, or that the disability would not have an average impairment to earning capacity.
Further complicating the matter is that the Board's decision contains no discussion regarding the appellant's employment impairment due to this condition. The Court holds that the record reasonably raised the possibility of an extraschedular evaluation pursuant to § 3.321(b), and it was error for the Board not to consider
such an evaluation.
The Court will not, at this time, address other arguments and issues the
appellant raises that pertain to this Board decision. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)(holding that "[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
the Board rule against him"). On remand, the appellant is free to submit
additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court).
After consideration of the appellant's and the Secretary's pleadings, and
a review of the record, the Board's March 10, 2008, decision is VACATED, and the matter is REMANDED for further proceedings consistent with this decision.
DATED: January 25, 2011
4
Copies to:
Ralph G. Stiehm, Esq.
VA General Counsel (027)
5
"The Court agrees with the appellant's argument that the Board should have
discussed the possibility of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(2010).
Section 3.321(b) provides that [r]atings 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.
38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court concluded that "
determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."
First, the Board or the regional office (RO) must determine whether the
evidence presents "such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. To do this, the Board or the RO must determine whether the criteria
2
found in the rating schedule reasonably describe the claimant's disability level and symptomatology.Id. If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required.Id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the RO or the Board move to the second prong of the analysis. Id.
Under the second prong, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Id. at 116. In sum, if the Board or RO determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step – to determine whether, to accord justice, an extraschedular rating must be assigned. Id.
The Court has circumscribed its review in cases where the appellant did
not explicitly raise the issue of extraschedular rating below. "[T]he Court's review is limited to the facts found by the Board and to a determination of whether, based on those facts, a claim for § 3.321(b)(1) extraschedular consideration was reasonably raised and should have been discussed." Dingess v.
Nicholson, 19 Vet.App. 473, 499 (2006) (emphasis added). Although it does
not appear as though the appellant ever specifically asked the Board to consider § 3.321(b), she has repeatedly referred to difficulties that her condition causes her with employment. See R. at 343 (appellant's May 2006 VA Form 9, which includes her statement that pain and mobility from her disability "impact me on a daily basis, and also at my present place of employment"); 370 (appellant's July 2005 NOD in which she states that her bilateral heel spurs/arch collapse "has impacted me greatly requiring me to terminate present employment and seek employment which would allow me to be off my feet due to intermittent pain and locking"). The appellant is currently in receipt of a noncompensable disability rating under DC 7256, flatfoot, aquired. R. at 10. This rating is appropriate for a mild
condition with "symptoms relieved by built-up shoe or arch support." 38 C.F.R. 4.71a, DC 5276 (2010). This rating code has been assigned by analogy, and the Court recognizes that rating by analogy is not an exact science. See
3
Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (recognizing that a
disability rated under an analogous rating code will not show all objective criteria of the analogous rating). However, it is not clear that the noncompensable disability rating assigned to the appellant is intended to cover the
interference with employment that she has described throughout the course
of her claim, or that the disability would not have an average impairment to earning capacity.
Further complicating the matter is that the Board's decision contains no discussion regarding the appellant's employment impairment due to this condition. The Court holds that the record reasonably raised the possibility of an extraschedular evaluation pursuant to § 3.321(b), and it was error for the Board not to consider
such an evaluation.
====================================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2040
ROBIN L. GREENE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Robin L. Greene, through counsel, appeals
a March 10, 2008, Board of Veterans' Appeals (Board) decision in which the Board
denied her claim for a compensable disability evaluation for bilateral heel spurs/arch collapse for any period from May 1, 2004. Record (R.) at 12. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed
to discuss a reasonably raised issue of record, the Court will vacate the Board's decision and remand the matter for further proceedings.
The appellant had active service from April 1982 to April 2004. R. at 504-
05. In May2005, she was diagnosed with heel spurs and pes planus. R. at 398. In June 2005, she was awarded entitlement to service connection for bilateral heel spurs/arch collapse and assigned a noncompensable disability rating, effective May 1, 2004. R. at 385-92. In July 2005, she filed a Notice of Disagreement (NOD), arguing in essence that she was entitled to a compensable disability rating for this condition. R. at 370.
In the decision on appeal, the Board determined that the appellant was not
entitled to a compensable disability evaluation for her service-connected bilateral heel spurs/arch collapse. R. at 12. Relying on the results of a May 2005 VA medical examination, the Board found that the appellant's condition was mild and did not give rise to a compensable disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276 (2007). R. at 11.
The appellant raises several arguments on appeal. First, she contends that
the Board failed to comply with its duty to assist by failing to obtain records she had requested. Appellant's Brief (Br.) at 4-6. Next, she asserts that the Board relied on an inadequate medical examination. Id. at 6-8. She argues that the Board failed to consider the possibility of evaluating her condition under a
rating code other than DC 5276, and that the Board should have considered
assigning an extraschedular evaluation. Id. at 8-9. She also appears to argue that the Board improperly characterized her condition as "mild." Id. at 10. The Secretary rebuts these contentions and argues that the Court should affirm the Board's decision. Secretary's Br. at 12.
The Court agrees with the appellant's argument that the Board should have
discussed the possibility of an extraschedular evaluation pursuant to the provisions of38C.F.R. §3.321(b)(2010).
Section 3.321(b) provides that [r]atings 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. 38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet.App. 111, 115 (2008), the Court concluded that "
determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."
First, the Board or the regional office (RO) must determine whether the
evidence presents "such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. To do this, the Board or the RO must determine whether the criteria
2
found in the rating schedule reasonably describe the claimant's
disability level and symptomatology. Id. If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required.Id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the RO or the Board move to the second prong of the analysis. Id.
Under the second prong, the RO or the Board must determine whether the
claimant's exceptional disability picture exhibits other related factors such as "
marked interference with employment" and "frequent periods of hospitalization." Id. at 116. In sum, if the Board or RO determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference
with employment or frequent periods of hospitalization, the case must be
referred for completion of the third step – to determine whether, to accord justice, an extraschedular rating must be assigned. Id.
The Court has circumscribed its review in cases where the appellant did
not explicitly raise the issue of extraschedular rating below. "[T]he Court's review is limited to the facts found by the Board and to a determination of whether, based on those facts, a claim for § 3.321(b)(1) extraschedular consideration was reasonably raised and should have been discussed." Dingess v.
Nicholson, 19 Vet.App. 473, 499 (2006) (emphasis added). Although it does
not appear as though the appellant ever specifically asked the Board to consider § 3.321(b), she has repeatedly referred to difficulties that her condition causes her with employment. See R. at 343 (appellant's May 2006 VA Form 9, which includes her statement that pain and mobility from her disability "impact me on a daily basis, and also at my present place of employment"); 370 (appellant's July 2005 NOD in which she states that her bilateral heel spurs/arch collapse "has impacted me greatly requiring me to terminate present employment and seek employment which would allow me to be off my feet due to intermittent pain and locking"). The appellant is currently in receipt of a noncompensable disability rating under DC 7256, flatfoot, aquired. R. at 10. This rating is appropriate for a mild
condition with "symptoms relieved by built-up shoe or arch support." 38 C.F.R. 4.71a, DC 5276 (2010). This rating code has been assigned by analogy, and the Court recognizes that rating by analogy is not an exact science. See
3
Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (recognizing that a
disability rated under an analogous rating code will not show all objective criteria of the analogous rating). However, it is not clear that the noncompensable disability rating assigned to the appellant is intended to cover the
interference with employment that she has described throughout the course
of her claim, or that the disability would not have an average impairment to earning capacity.
Further complicating the matter is that the Board's decision contains no discussion regarding the appellant's employment impairment due to this condition. The Court holds that the record reasonably raised the possibility of an extraschedular evaluation pursuant to § 3.321(b), and it was error for the Board not to consider
such an evaluation.
The Court will not, at this time, address other arguments and issues the
appellant raises that pertain to this Board decision. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)(holding that "[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
the Board rule against him"). On remand, the appellant is free to submit
additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court).
After consideration of the appellant's and the Secretary's pleadings, and
a review of the record, the Board's March 10, 2008, decision is VACATED, and the matter is REMANDED for further proceedings consistent with this decision.
DATED: January 25, 2011
4
Copies to:
Ralph G. Stiehm, Esq.
VA General Counsel (027)
5
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