Marvin O. Johnson v. Eric K. Shinseki
26 Vet. App. 237
Vet. App.2013Background
- Johnson, a veteran, appealed a May 14, 2010 Board decision denying increased ratings for rheumatic heart disease and right knee, and denying diabetes relation to herbicide exposure and hypertension reopening; Board granted a separate 10% for right knee instability and remanded left knee and TDIU.
- He filed in March 2008 for increased ratings for rheumatic heart disease and knee degenerative changes; VA exams showed bilateral knee changes and mild right knee symptoms.
- The Board denied extraschedular referral for rheumatic heart disease and right knee under 38 C.F.R. § 3.321(b)(1); it found no frequent hospitalizations or marked employment interference.
- The Board treated diabetes mellitus and hypertension as abandoned claims as Johnson did not address them on appeal.
- The Board’s decision thus affirmed some schedular ratings, denied extraschedular referral on a disability-by-disability basis, and remanded left knee and TDIU for further proceedings.
- Concurrences and dissents address authority and interpretation of § 3.321(b)(1) and the possibility of collective-disability consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3.321(b)(1) allows extraschedular referral on a collective disability basis. | Johnson argues for collective consideration of disabilities. | The Secretary defers to disability-by-disability interpretation. | The Board was not required to refer collectively; the Secretary's interpretation is entitled to deference. |
| Whether the Board's analysis for individual disabilities was adequate under Thun v. Derwinski and related cases. | Johnson contends lack of step-one discussion and lay-evidence consideration. | Board discussed overall factors; error viewed as harmless. | Board’s analysis was adequate; any error was harmless and not prejudicial. |
| Whether the Board properly abandoned or adjudicated the diabetes and hypertension claims. | Johnson intended challenges to those denials. | Claims abandoned because not argued on appeal. | Claims for diabetes and hypertension abandoned; no review on those matters. |
| Whether remand of left knee and TDIU merits review or affects the extraschedular ruling. | Remand on left knee could affect TDIU and extraschedular consideration. | Remand appropriate for left knee; does not alter extraschedular ruling. | Remand proper; does not derail the extraschedular findings for the issues on appeal. |
Key Cases Cited
- Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed.Cir.2005) (jurisdictional limits on remanded claims)
- Ford v. Gober, 10 Vet.App. 531 (1997) (claims not addressed are abandoned)
- Coker v. Nicholson, 19 Vet.App. 439 (2006) (pleading error and standard for addressing errors)
- Hilkert v. West, 12 Vet.App. 145 (1999) (burden on appellant to show Board error)
- Thun v. Derwinski, 22 Vet.App. 111 (2008) (three-step Thun framework for extraschedular referrals)
- Brambley v. Principi, 17 Vet.App. 20 (2003) (complete picture of employability required; Brambley approach cited)
- Vazquez-Flores v. Shinseki, 24 Vet.App. 94 (2010) (context on extraschedular considerations and proofs)
- Smith v. Nicholson, 451 F.3d 1344 (Fed.Cir.2006) (deference to agency interpretation of regulation)
- Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013) (continuing deference for agency interpretation despite litigation)