Willie C. Wages v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 59
| Vet. App. | 2015Background
- Veteran Willie C. Wages has multiple service-connected disabilities and received a 90% rating effective December 11, 2009; he sought TDIU for periods before that date.
- The Board (June 2012) found he met schedular TDIU as of December 11, 2009, but concluded it could not award extraschedular TDIU for earlier periods and referred the matter to the Director under 38 C.F.R. § 4.16(b).
- The Director reviewed the record and denied extraschedular TDIU for the pre-December 11, 2009 period, finding no evidence the veteran was unable to secure or follow substantially gainful sedentary employment.
- The RO implemented the Director’s denial in a December 2012 SSOC; the Board later denied extraschedular TDIU on appeal and expressly relied on the Director’s opinion as among the most probative medical evidence.
- Wages appealed, arguing the Board erred by treating the Director’s decision as evidence and by failing to explain how his vocational/education background supported the Board’s sedentary-work finding.
- The Court considered whether the Board must defer to the Director’s § 4.16(b) decision or instead review it de novo and whether the Director’s determination is evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board may rely on the Director’s § 4.16(b) decision as evidence | Wages: Board owes no deference; Director’s decision is not evidence and Board must review de novo | Secretary: Director’s decision is effectively binding on the Board once facts are correct; Director exercises discretionary policy judgment | Court: Director’s decision is not evidence; Board erred by assigning evidentiary weight to it and must review de novo |
| Whether § 4.16(b) strips the Board of authority to overturn the Director | Wages: Board must make final TDIU determinations under 38 U.S.C. § 7104(a) | Secretary: § 4.16(b) delegatesthe substantive extraschedular decision to the Director as policy discretion | Court: § 4.16(b) does not restrict Board review; statutory scheme gives Board final decision-making authority on benefits under § 511(a) and § 7104(a) |
| Whether the Board provided adequate reasons or bases re: ability to perform sedentary work | Wages: Board failed to explain how his vocational/education profile supports sedentary work finding | Secretary: Board relied on medical opinions (including Director) indicating capacity for sedentary work | Court: Because Board improperly relied on Director’s decision as evidence, remand required; other reasons-or-bases challenges rendered moot on remand |
| Remedy for Board’s error in treating Director’s decision as evidence | Wages: Remand and de novo review by Board; opportunity to submit additional evidence | Secretary: (implicit) affirm if Director’s decision viewed as persuasive | Court: Set aside Board decision and REMAND for further adjudication; Board must not treat Director’s decision as evidence and must address arguments/evidence on remand |
Key Cases Cited
- Frankel v. Derwinski, 1 Vet.App. 23 (1990) (panel decision procedure referenced for first-impression issue)
- Bowling v. Principi, 15 Vet.App. 1 (2001) (prior precedent holding Board may not award extraschedular TDIU in first instance)
- Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (TDIU raised when veteran presents cogent evidence of unemployability)
- Anderson v. Shinseki, 22 Vet.App. 423 (2009) (Board may review denial of extraschedular rating on appeal)
- Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (Board acts on behalf of Secretary in making ultimate benefits decisions)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand required where Board misapplies law or fails to provide adequate reasons or bases)
- Kay v. Principi, 16 Vet.App. 529 (2002) (claimant may submit additional evidence on remand; Board must consider it)