Nathan Yancy v. Robert A. McDonald
27 Vet. App. 484
| Vet. App. | 2016Background
- Veteran Nathan Yancy appealed a Board of Veterans' Appeals (Board) August 21, 2014 decision denying increased disability ratings for multiple foot conditions (pes planus, hallux valgus) and denying extraschedular referral; some other issues were abandoned on appeal.
- VA RO originally granted service connection for bilateral pes planus (10%) and hallux valgus (noncompensable) in 2008; veteran sought higher ratings in his NOD and appeal.
- Record includes a November 8, 2010 medical opinion diagnosing "hallux valgus et rigidus" and other unlisted foot conditions (e.g., calcaneus deformity, heel spurs).
- Board found no compensable hallux rigidus (DC 5281), declined DC 5284 for "other foot injuries," and concluded extraschedular referral was not warranted without fully addressing combined-effects arguments.
- The Court vacated the Board's denials as to increased foot ratings and extraschedular referral and remanded for the Board to (1) determine whether the 2010 opinion diagnoses hallux rigidus and, if so, whether it is severe (DC 5281); (2) assess whether unlisted foot conditions merit analogy to DC 5284; and (3) consider referral for extraschedular evaluation based on the combined effects of all service‑connected disabilities (per Johnson) when reasonably raised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board adequately addressed DC 5281 (hallux rigidus) | Yancy: Board erred by not discussing the 11/8/2010 notation of "hallux valgus et rigidus" and whether hallux rigidus exists/severe | Secretary: Any error harmless because DC 5281 rates as hallux valgus and Yancy already rated under DC 5280 | Vacated/remanded: Board must determine if 2010 opinion diagnoses hallux rigidus and if it is severe, then apply DC 5281 as appropriate |
| Applicability of DC 5284 ("Foot injuries, other") and analogy | Yancy: DC 5284 is a catch‑all; Board should consider whether unlisted conditions (heel spurs, calcaneus deformity) fit DC 5284 | Secretary: "Injury" in DC 5284 denotes external/traumatic injury; unlisted non‑traumatic conditions not covered; but analogy may apply | Vacated/remanded: Court holds "injury" ordinarily means injury (external trauma) but Board must consider whether unlisted conditions can be rated by analogy under DC 5284 |
| Whether Board properly considered extraschedular referral under Thun | Yancy: Board failed to compare all symptoms to rating criteria (first Thun element) and omitted second Thun element; collective effects should be considered | Secretary: Board need only perform full Thun analysis if issue is raised; first and second Thun elements are distinct; no obligation to invent combined‑effects theory absent record or argument | Vacated/remanded: Record reasonably raised collective‑effects issue (inability to stand/sit long because of combined disabilities); Board must perform full Thun analysis, including consideration of combined effects per Johnson when reasonably raised |
| Scope of Johnson v. McDonald on combined disabilities | Yancy: Johnson requires Board to consider combined disabilities for extraschedular referral whenever multiple service‑connected conditions exist | Secretary: Johnson allows combined‑effects consideration only when claimant raises it or the record reasonably shows combined impact | Held: Johnson permits combined‑effects referral but only when reasonably raised by the record or argued by claimant; Board must assess combined symptoms only to the extent within appellate jurisdiction |
Key Cases Cited
- Pederson v. McDonald, 27 Vet.App. 276 (en banc) (issue abandonment rules)
- Allday v. Brown, 7 Vet.App. 517 (1995) (Board must provide adequate reasons and bases)
- Thun v. Peake, 22 Vet.App. 111 (2008) (three‑part extraschedular referral test)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (2014) (extraschedular referral may be based on combined impact of multiple disabilities)
- Copeland v. McDonald, 27 Vet.App. 333 (2015) (DC 5284 cannot be used to rate conditions specifically listed elsewhere in schedule)
- Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir.) (appellate court cannot make factual findings in first instance)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand appropriate when Board fails to provide adequate reasons or bases)