Jose v. Kuppamala v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 1782
| Vet. App. | 2015Background
- Veteran Jose V. Kuppamala, service 1987–1991, sought increased disability for ulcerative colitis after total colectomy; RO ultimately assigned a 40% schedular rating (DC 7329) and the Director awarded a 10% extraschedular evaluation, implemented as a combined 50% effective July 23, 2007.
- The Board affirmed a 50% rating in a June 27, 2014 decision; veteran appealed alleging the Board failed to perform a de novo review of the Director’s extraschedular award and failed to consider the full disability picture (weight loss, fatigue, sleep disruption, memory/concentration problems, back/leg pain).
- Director’s award relied principally on frequency of bowel movements (about 14/day) and concluded schedular criteria did not contemplate that frequency, warranting extraschedular relief under 38 C.F.R. § 3.321(b).
- Secretary argued the Director’s extraschedular decision is committed to agency discretion, not reviewable by the Board, and that the Board’s cursory adoption of the Director’s reasoning was harmless.
- The Court considered whether the Board has jurisdiction to review the Director’s award de novo, whether manageable standards exist for review, and whether the Board may itself assign an extraschedular rating.
Issues
| Issue | Plaintiff's Argument (Kuppamala) | Defendant's Argument (Secretary) | Held |
|---|---|---|---|
| Whether the Board must review the Director’s extraschedular award de novo | Board improperly merely repeated Director; Board must independently assess the full disability picture and provide reasons or bases | Director’s award is discretionary/policy-based and insulated from Board review; Board may only note that Director made a decision | Board must review the Director’s entire extraschedular decision de novo and provide reasons or bases |
| Whether judicially manageable standards exist to review extraschedular awards | Average impairment in earning capacity provides a reviewable legal standard; Director’s finding is fact-driven | No clear manageable standards or Board expertise to assess "average impairment"; decision is policy-based and nonreviewable | Statute/regulation (38 U.S.C. §1155; 38 C.F.R. §3.321(b)) supply a manageable standard (average impairment in earning capacity); review is appropriate |
| Whether the Board may itself assign an extraschedular rating on appeal | Board should be able to remediate errors and assign rating where warranted | Board lacks authority/expertise to assign extraschedular ratings; assignment reserved to Director/Under Secretary | Board may assign an extraschedular rating after de novo review; Director’s initial, centralized role does not insulate decision from review |
| Whether the Board’s decision here provided adequate reasons or bases | Board failed to address many reported symptoms and therefore failed to explain its 50% determination | Any defects are harmless because the Board lacked authority to review Director | Board’s explanation was inadequate; matter vacated and remanded for a full de novo Board review with reasons or bases |
Key Cases Cited
- Bates v. Nicholson, 398 F.3d 1355 (Fed. Cir.) (clarifies §511(a) scope and that Board review implements congressional purpose)
- Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.) (Board acts on behalf of Secretary; §§511(a) and 7104(a) dictate Board review)
- Werden v. West, 13 Vet.App. 463 (Vet. App.) (limited review where statute vests absolute discretion in Secretary)
- Floyd v. Brown, 9 Vet.App. 88 (Vet. App.) (Director must adjudicate extraschedular awards in first instance; Board review thereafter)
- Anderson v. Shinseki, 22 Vet.App. 423 (Vet. App.) (Board may review all elements of extraschedular inquiry conducted below)
- Wages v. McDonald, 27 Vet.App. 233 (Vet. App.) (Director’s decision is akin to RO decision and reviewed de novo by the Board)
- Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir.) (addresses RO/Director roles in extraschedular referral process)
- Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir.) (focus on symptomatology and impairment to determine rating)
- Mauerhan v. Principi, 16 Vet.App. 436 (Vet. App.) (symptoms are not exhaustive; Board must consider all symptoms affecting impairment)
- Allday v. Brown, 7 Vet.App. 517 (Vet. App.) (Board must provide reasons or bases to facilitate review)
- Caluza v. Brown, 7 Vet.App. 498 (Vet. App.) (Board must analyze credibility and explain rejection of favorable evidence)
- Gilbert v. Derwinski, 1 Vet.App. 49 (Vet. App.) (reasons-or-bases standard for Board decisions)