William R. Sowers v. Robert A. McDonald
27 Vet. App. 472
| Vet. App. | 2016Background
- Appellant William R. Sowers served in the Air Force and sustained a service-connected right ring finger injury (mallet/distal interphalangeal fracture). VA assigned DC 5230 (ring or little finger limitation of motion) with a 0% rating.
- VA removed DC 5010 (arthritis) because x-rays did not substantiate arthritis; Board found no ankylosis or amputation-equivalent condition.
- Sowers reported painful motion, occasional locking, and functional difficulty at work; VA exams showed occasional pain/stiffness but preserved motion and no ankylosis.
- The Board concluded DC 5230 (which prescribes 0% for any limitation of motion) was the correct schedular DC and denied a compensable rating under 38 C.F.R. § 4.59.
- The Board also denied extraschedular consideration for the finger disabilities; the Court vacated that part for the Board to reconsider in light of later Federal Circuit guidance.
- The Court affirmed the Board’s denial of a compensable rating under § 4.59 because § 4.59 must be read with the claimant’s applicable DC and DC 5230 provides no compensable rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4.59 entitles Sowers to a compensable rating for painful motion despite DC 5230 prescribing 0% | Sowers: § 4.59 requires granting at least the minimum compensable rating for the affected joint; VA must consider other DCs for the same joint (e.g., DC 5227) to "build up" a compensable rating | Secretary: § 4.59 is read in conjunction with the assigned DC; because DC 5230 has no compensable rating, § 4.59 cannot provide one | The Court: Affirmed — § 4.59 is limited by the assigned DC; DC 5230’s 0% overrides a standalone § 4.59 compensable award |
| Whether the Board erred by denying extraschedular consideration | Sowers: Board should have considered § 4.59 and the combined effects of his finger disabilities; reasons and bases were inadequate | Secretary: The record does not show entitlement to extraschedular referral; Board’s findings adequate | The Court: Vacated and remanded — Board must address extraschedular referral in light of Johnson v. McDonald (collective impact) and apply facts first |
Key Cases Cited
- Copeland v. McDonald, 27 Vet.App. 333 (rejecting claimant shopping among DCs; listed condition should be rated under its specific DC)
- Petitti v. McDonald, 27 Vet.App. 415 (§ 4.59 must be read in conjunction with the applicable DC)
- Lichtenfels v. Derwinski, 1 Vet.App. 484 (earlier consideration of § 4.59 with specific DCs)
- Thun v. Peake, 22 Vet.App. 111 (extraschedular referral standard; schedular inadequacy threshold)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (Board must consider collective impact of all disabilities for extraschedular referral)
- Mitchell v. Shinseki, 25 Vet.App. 32 (discussion of § 4.59 and limits on awards when no compensable limitation of motion)
- Beverly v. Nicholson, 19 Vet.App. 394 (principle that specific regulatory provisions trump general ones)