*1 clearly all were by the dissent —but braced January the On and understood. considered timely motion for reconsideration filed a essence, he reiterates In by panel. the deny appel- I the Accordingly, voted in his previously presented arguments Having lant’s motion for reconsideration. argument before oral brief and at that, so, emphasize I want to done also panel ... [recon motion for “[A] Court. might I have decided irrespective of what points of law ... must state the sideration] I original panel, believe had I been on the the Court believes party that the or fact unto- something quite be that there would U.S. or misunderstood.” has overlooked being reconsid- panel in a decision ward 35(e)(1). The Court did R. serendipitous sub- ered on account of any argument misunderstand overlook of judge for a member stitution of a new it. The properly before that was in circum- panel. change A original argument that war any presented has not stances, fact, law, merely change not a by panel. rants reconsideration required for this Court judge, in should be foregoing, it is Upon consideration panel overturn a perhaps to reconsider and decision under Rule 35. for a recon- that the motion ORDERED panel is denied. by the sideration
KRAMER, dissenting: Judge, Chief FARLEY, Judge, concurring: my dissent to For the reasons stated fully considered panel A of this Court 12, 2002, panel opinion the December I rendered a decision. this matter and (see Principi Wilson 16 Vet. this case panel; assigned I was not on that was (2002) (Kramer, C.J., dis- Judge upon the retirement panel appellant’s senting)), grant I voted to full only panel when a was Holdaway and by panel. motion for reconsideration appellant’s motion to rule on the required of this Court’s Rules pursuant Rule 35 for reconsideration
Practice and Procedure original
of that decision. motion for reconsidera and articu us with vehement presents
tion the decision of the disagreement
late majority, but there is noth original panel BRAMBLEY, Appellant, D. Seth event, new, change intervening no ing no The essence of the law. Anthony PRINCIPI, Secretary of J. original simply that the decision motion Affairs, Appellee. Veterans specified twelve re wrong at least appellant has not identified spects but the No. 01-1156. original of law or fact” that the “points Court of United States “overlooked or misunderstood.” panel Claims. Veterans 35(e)(1). fact, when R. U.S. dissenting opinions are majority Feb. they that all of together, demonstrate read appellant identifies points expressly reconsideration were motion for were re panel; some
considered em-
jected by majority, some were *2 LaPointe, Island,
Richard A. of Marco FL, was on the brief for McClain, Counsel; Tim S. General Joan Moriarty, Acting E. Assistant General Counsel; Ann Mary Flynn, Deputy Assis- Counsel; tant General and Robert W. DC, Legg, Washington, all of were on the appellee. brief for the KRAMER, Judge, Before Chief STEINBERG, Judges. IVERS and IVERS, Judge, filed the opinion STEINBERG, Judge, Court. filed a concurring opinion.
IVERS, Judge: Brambley appeals May Veteran Seth 30, 2001, decision of the Board of Veterans’ (Board BVA) (1) that denied disability rating increased for low back degenerative strain with arthritis motion, spine lumbar with limitation of currently disabling; rated as 40% de- degenerative nied an increased spine pain arthritis of the thoracic on of motion. R. at limitation disabling; spine bar motion, currently rated as 10% rating of RO decision denied claim for a 322-29. The same remanded ground unem- TDIU-rating on individual claim on disability based total (R.) (TDIU). reg- at 1-23. not meet the Record condition did ployability *3 the merits of not address in 38 C.F.R. ulatory The Court will threshold described 4.16(a) (2002) TDIU-rating claim because rating. R. at 327. the remanded for that entered decision has been no final Board appeal, on decision here not, claim, and it is that respect appel history of the Board reviewed therefore, before the Court. See properly concerning disabili claims his back lant’s Gober, 7252(a); Howard v. 38 U.S.C. The Board summarized ties. R. at 3-9. (Fed.Cir.2000); also 38 F.3d diagnostic codes regulatory the relevant (2002). 20.1100(b) rea- For the C.F.R. service-con analyzed appellant’s and below, will vacate the Court sons discussed in light applicable of the nected disabilities the matter and remand the Board decision R. 9-12. The Board concluded codes. consistent with proceedings further for maximum receiving was appellant that the opinion. con ratings allowed for his sc hedular The Board also ditions. R. at 15-17. I. FACTS applicability extras- considered duty with appellant served on active The rating pursuant chedular 1985 to Corps Marine from June the U.S. 3.321(b)(1) (2002). The Board concluded In September R. at 102. March 1987. had not demonstrated that seeking claim increased he filed a conditions, in and of of his either back disability ratings for his service-connected itself, sufficiently extraordinary or un was seeking claim a and a back conditions P referral to the VA C & usual to warrant time, At that rating. R. at 231-35. TDIU of an Director for consideration Service for disability rating a the veteran had 20% R. at 15-17. rating. degenerative chronic low back strain with lim- spine with arthritis of the lumbosacral TDIU- respect With motion, disability rat- and a 10% itation of claim, the Board concluded that ad- rating arthritis of the tho- ing degenerative evidentiary was nec- development ditional R. at pain on motion. spine racic seven-point R. at In a re- essary. 18. (RO) 145-47, A office regional 171-73. VA order, clarify the RO was directed to mand August spine conducted a examination appellant’s employ- in the inconsistencies showed, X-rays inter R. at 316-20. of his history, particularly the effect ment alia, changes in degenerative arthritic mild on his em- service-connected disabilities area, antero- deformity of the the thoracic was ployability. R. at 19-22. RO vertebra, L4 and superior corner orthopedic for an ex- provide directed to re- changes in the lumbar degenerative amination, necessary, if to determine compensation A gion. R. at 319. VA per- capable was whether (C P) social work examination pension & em- forming sedentary or nonstrenuous 1999 to re- September conducted ployment. R. at as- history work view the A R. at 310-14. employability. sess his II. ANALYSIS decision continued November 1999 RO findings as to the The Board’s his arthritis of the thoracic rating 10% resulting from a dis degree impairment increase spine and awarded by the factual and are reviewed ability lum- are arthritis of the degenerative 40% for submission, “clearly upon erroneous” stan field station Court under the autho- 7261(a)(4). rized to approve dard under 38 U.S.C. on basis of the paragraph Francisco v. criteria set forth in this 1 Vet.App. Gilbert v. extra-schedular evaluation commensu- 49, 53 The Board must base its earning rate with average capacity decision on “all evidence and material of impairment exclusively due to the ser- record” and must “written state vice-connected or disabilities. findings and conclu ment of the Board’s governing exceptional norm these sions, or bases for those reasons pres- cases is: A that the finding case conclusions, on all findings and material ents such an or unusual exceptional dis- presented issues of fact law on the ability picture related with such factors *4 7104(a), (d)(1); record.” 38 U.S.C. see as marked with employ- interference Gilbert, 1 56-57. Pursuant to Vet.App. at frequent hospitaliza- ment or periods statutory requirements, these the Board tion as to impractical applica- render must “account for the evidence which it tion of the regular schedular standards. unpersuasive,” finds to persuasive be (2002). 3.321(b)(1) 38 C.F.R. Extrasche- provide rejecting reasons or bases for rating dular is a component consideration evidence submitted on behalf of the of the for an appellant’s claim increased Gilbert, 1 Vet.App. claimant. at 57. The Brown, rating. Bagwell v. adequate be Board’s statement must 337, Brown, (1996); Floyd 9 Vet. inform the of the basis for the 88, App. (stating that extrasche- permit judicial discussion and to effective dular rating “always part” consideration review. See Fleshman v. 9 Vet. rating-increase of claim for schedular (1996); 548, Brawn, Allday claim). held, previously As the Court has 7 Vet.App. obligated ap Board is consider the contends, alia, inter plicability ratings of extraschedular to a provide adequate the Board failed increased-rating Floyd, claimant’s case. statement of or bases reasons as to the supra. In circumstances where the Board issue of to an entitlement does not refer a claim for extraschedular 3.321(b)(1). rating Ap- under 38 C.F.R. review, provide “the Board must an ade (Br.) pellant’s at 5. Brief quate statement of or bases for its reasons counters that the Board reviewed the en- West, Colayong decision not to do so.” tire record and that the found evidence did 12 Vet.App. Bag see also not appellant’s show that either the low well, 339; at Kellar v. disability spine back or thoracic arthritis (remanding disability presented picture unusual Board’s failure to state enough application to render the of the regarding ment of appli reasons or bases impractical. Secretary’s schedule 3.321(b)(1)). cability of 38 C.F.R. Br. at 15. on appeal, decision 3.321(b)(1), provides which
Section Board the evidence of rec concluded that review of avenue additional the ex appel ord did not of the support referral ease, ceptional states: lant’s back for extraschedular disabilities Then, in remanding evaluations consideration. his [WJhere schedular are claim, Board inadequate, TDIU-rating found to be the Under acknowl Sec- retary Director, edged development” was for Benefits or the that “additional Service, necessary the RO to investi- Compensation and Pension and ordered concerning in the of the specific completeness inconsistencies tions gate several tasks, respect Among R. at 18. other record. With to extraschedular record. consideration, ordered to the Board found the record RO was that the sufficient conclude Chapter 31 2. the veteran’s [0]btain not show service-connected disabilities do folder and asso- vocational rehabilitation employment,” a “marked interference with ciate it with the claims folder. 3.321(b)(1). Nevertheless, the veteran is whether [Ascertain employ- Board concluded that additional Security Administra- receipt of [Social medical neces- ment and information was copies and obtain benefits tion] sary adjudicate fairly claim. the TDIU awards determination and/or Although it is well settled that extrasche- as well as made on veteran’s behalf are dular consideration and TDIU claims upon concern- the medical records relied “ necessarily ‘inextricably inter- ing such. ” wined,’ 537; Colayong, Vet.App. at clarify whether veteran to [A]sk Kellar, Vet.App. adju- here both employment True Value Hard- his require complete picture dications was, fact, employment ware service-connected disabilities they Company or [whether] Cotter *5 employability. their effect on 38 his jobs different em- were different 3.321(b)(1), 4.16; §§ also 38 C.F.R. clarify ployers. The veteran should also 4.1, 4.2, (2002). Thus, §§ C.F.R. 4.10 1992 that he April statement was premature was for the Board to decline jobs. forced to leave four extraschedular consideration where Company Cotter and the rea- [A]sk in significantly incomplete a record in 1994. resignation son for the veteran’s probative number of relevant areas of the The RO should ascertain whether also Therefore, employability. of on re- issue on-the-job in- any the veteran sustained mand, requisite the Board must make the juries working while at the True Value findings of fact and center or else- Hardware distribution statement of reasons on the issue or bases after he filed where service and whether of whether referral of the extraschedular for any Compensation claims Workers’ light issue in of consideration is warranted injuries benefits connection with dur- order. the terms TDIU remand ... ing post-service employment [T]he request any copies RO of such The Court will not at this time address .should records, any medical as well as decision arguments by the other and issues raised upon medical and the records relied See Best v. order)
awarding benefits 18, veteran (per curiam Compensation (“A from State Workers’ ap- narrow decision for the preserves agency. pellant opportunity argue those at the claimed errors before the Board 00-15003, Brambley, D. at 19-20 Seth BVA and, course, readjudication, this of before 2001). 30, (May As the terms of the re- appeal, in an Board rule Court should the clear, mand order make the Board did him.”). against as consider evidence em- sufficiently ployment medical record of The Board’s inconsistent treatment adjudicate complete enable it to altogether record is not properly fairly. claim TDIU surprising given ambiguity within Indeed, regulations. this disability ratings It is difficult to understand how the divergent posi- guidelines Board can maintain has noted the of these Court absence ratings timely, in extraschedular issue a assigning well-supported for decision in Floyd, cases and for TDIU claims. See 9 this case.” Fletcher Vet. 394, (noting at 97 that 38 C.F.R. App. see also 38 U.S.C. guid 5103(a), §§ does not include criteria or 3.321 5103A. pro The Board shall assigning particular ance for extraschedu expeditiously. ceed See Veterans’ Benefits rating percentages); 1994, lar Improvement Vettese Act of Pub.L. No. 103- 31, (found (noting TDIU 108 Stat. “ ” note) ‘subjective’ claims focus on factors not (requiring Secre schedule). by ratings considered tary to provide “expeditious treatment” claims remanded the Board or clarify The need to streamline and Court); Drosky see also 10 Vet. regulations major topic was a of discussion at the Court’s Seventh Judicial Conference in September During the confer- STEINBERG, Judge, concurring. ence, Secretary for Benefits VA Under For the reasons stated the Court’s summarized efforts opinion, join I revise, opinion the Court’s vacat- P clarify, and restructure the C & ing the Board of Veterans’ regulations simplify in order to them and (Board) remanding decision and the mat- friendly” make them more for veter- “user However, proceedings. ter for further I ans, their representatives, and ROs. As would also hold that the case, Board committed the two issues addressed one warranting certain other errors remand. possible avenue provisions combine ratings TDIU First, regarding the matter referral single regulation applying into a for extraschedular pursuant consideration disability. continuum of approach Such an *6 3.321(b)(1), § to 38 C.F.R. the Board did might help application avoid inconsistent of not in address its statement of reasons or the two rules. bases certain evidence favorable to the required
veteran. The Board is to consid III. CONCLUSION consider, all er evidence of record and to decision, Upon forgoing, consideration of “potentially the the and discuss its all 30, 2001, May applicable” provisions regula BVA decision is VACATED of law and Derwinski, and the matter fur Vet.App. is REMANDED for tion. v. 1 Schafrath 589, adjudication (1991); 7104(a); § ther opin consistent with this 593 see 38 U.S.C. 301, ion. On remand the appellant Principi, Vet.App. is free to Weaver v. 14 302 order); proffer arguments (per and additional evi curiam Sanden v. Der Board, winski, (1992). 97, 2 Vet.App. dence the and the Board must 100 The any arguments required address such or evidence. Board is also to include in its 529, Kay Vet.App. See v. 16 534 decision a written statement of the reasons West, (2002); Kutscherousky v. 12 findings Vet. or bases for its and conclusions on order) (on 369, (per present 372 curiam all material of fact and issues law remand, record; appellant free addition to submit ed on the that statement must be al “A argument). adequate evidence and remand is to under enable meant to entail a critical examination of precise stand the basis for the Board’s justification decision, the for the decision. The as well as to facilitate review 7104(d)(1); expects § Court that the BVA will reexamine this Court. See 38 U.S.C. record, any Allday the evidence of seek other (1995); necessary,
evidence the Board feels is
Gilbert
claim, failed to address ev-
unemployability
comply with this
To
56-57
had been
analyze
of record that
Board must
idence
requirement,
50).
Court,
of the evi
score of
credibility
probative
assigned
value
GAF
therefore,
dence,
for the evidence
also remand the extras-
account
should
pro
unpersuasive,
Board to
persuasive
chedular-rating
finds
matter
to the
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the reasons
vide
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claim
evidence favorable
material
that discusses the material evi-
or bases
Brown, Vet.App.
ant.
Caluza v.
See
Board that
not evaluated
dence
curiam,
(1995),
Assessment of 3.321(b)(1). sideration under When VA P September in that 1999 C & same consid- evaluates a case for extraschedular 311). (R. at report social-worker eration, regulation directs exami- carry duty out its Board thus did not *7 earning “average nation of the veteran’s that analyze probative the value of GAF exclusively to his capacity impairment due its provide any to reasons for score and disabili- service-connected or Caluza, rejection of that evidence. See 3.321(b)(1) (emphasis § ties.” 38 C.F.R. Gilbert, Gabrielson, That supra. all and added). case, although In the RO had this high a may be indicative of GAF score the veteran’s two service-con- evaluated Rich occupational impairment, see level of collectively disabilities as basis nected 266, 267 (Mary) ard consideration, the for (1996) score of 50 (recognizing that GAF Because the neglected Board to do so. occupational considerably less (signifying 3.321(b)(1) apply did not correct- 40) Board indicat than GAF score of impairment ly, its statement of reasons bases occupational in ... impairment ed “serious upholding adequate not as to its basis fac functioning”), significant ... and is a a referral decision not to make the RO’s capacity determining tor in the veteran’s for extraschedular consideration. See Bowling support, for self 7104(a), (d)(1); (2001) (remanding be U.S.C. 3.321(b)(1); Vet. cause, alia, Board, Fleshman v. adjudicating inter retary make reasonable efforts to Allday and Gil- shall bert, (including pri- relevant records supra. obtain both records) vate that the claimant ade- Furthermore, pro- Board failed to the Secretary quately identifies to the and statement of reasons vide an Secretary to authorizes the obtain. failure to obtain cer- regarding VA’s bases (“YRMC” records) tain medical records Secretary, the after Whenever ap- by identified specifically that were efforts, is un- making such reasonable (R. at April in an 1999 statement pellant able to obtain all of the relevant records 244) that he submitted RO. notify sought, Secretary shall “Although appears merely: Board stated Secretary claimant that the is unable to treatment rec- may that he have identified respect records with to the claim. obtain outpatient visits at YRMC’ ords for two notification shall— Such a that the records of such late 1998 and (A) identify Secretary the records the file, subsequent may not visits be obtain; is unable records have been obtained outpatient spinal ex- the veteran was afforded VA (B) briefly explain the efforts that the August 1999.” R. at 13. amination records; Secretary made to obtain those inadequate That is enable statement why the Board did appellant to understand (C) any further action to be describe obtain, obtain, those or at least seek to by Secretary respect taken by specifically that were identified records the claim. Caluza, Gabrielson, Gilbert, supra; all see also Godwin (b)(1)-(2). (a)(1), 5103A U.S.C. case, comply did not that under (holding prior 38 Al provisions of this section. 5107(a) 4104(d)(1) obligated §§ isVA though identified “YRMC” respond specific “request VA (R. 244), April in his 1999 letter records other”). way or the assistance one not obtain these records. the Board did Additionally, the Board violated the new failure of the reasoned that the Board duty-to-assist provisions en- section 5103A ‘YRMC” records Secretary to obtain the Assistance acted the Veterans Claims subsequent gathering of was cured 106-475, 114 Stat. Act of Pub.L. No. of a outpatient provision records and the 2000) (Nov. 9, (VCAA), regarding R. at 13. How VA medical examination. pro- records. New section 5103A those ever, 5103A does not section vides, part: in pertinent cured; rather, can be as this failure Duty to assist claimants 5103A. above, provisions quoted evident from Duty (a) (1) The Secre- 5103A(b)(2) specific To for a provides section *8 Assist.— efforts to tary shall make reasonable poten action when course of Secretarial obtaining a claimant in evidence assist by a tially record is identified applicable the claimant’s necessary to substantiate claimant and when it is unobtainable. for a benefit under a law adminis- claim indica appeal record on no There is Secretary. tered efforts” to tion either of VA’s “reasonable having records or of VA’s
obtain ‘YRMC” for its Obtaining (b) veteran of the reason notified the Rec Assistance such records. See failure to obtain part As of the assistance ords. — Godwin, 5103A(b)(2); (a), see also provided under subsection the Sec- U.S.C. Therefore, the case should be re- The Federal Circuit then reversed this supra. decision, the matter for fur- ground as well. and remanded manded on this proceedings opin-
ther consistent with its ion. Id. notes that the sub- Court original on application
mitted his EAJA Secretary October 2000. The submit- a response appellant’s applica- ted to the January tion on 2001. The HALPERN, Appellant, Elie reply Secretary’s re- submitted v. sponse January During on Anthony PRINCIPI, of J. years than parties more two since the sub- Affairs, Appellee. Veterans original pleadings, sig- mitted their EAJA changes nificant have occurred this No. 99-1472. generally Court’s EAJA caselaw. See of United States Court Principi, Vet.App. Sumner v. (2001) (en banc); Veterans Claims. Flemming Principi Principi, Sachs v. March light of those changes supplemental the Court will seek Esq., Topeka, Carpenter, Kenneth M. parties addressing memoranda from the KS, for Appellant. changes such in caselaw and their Gawalt, Esq., Appellee. Ann G. impact upon this case. FARLEY, IVERS, Before Accordingly, it is STEINBERG, Judges. that, days ORDERED not later than 30 order, parties from the date both
ORDER supplemental file with the Court memoran- addressing changes da the Court’s PER CURIAM: EAJA case law since the submission of the 12, 2002, On December U.S. Court original pleadings impact EAJA and the (Federal Appeals for the Federal Circuit changes upon those the outcome of this Circuit) held that this Court erred when case. jurisdiction determined that it lacked over attorney’s the appellant’s application for pursuant Equal
fees Access Jus (EAJA), 2412(d),
tice Act
Halpern order). (per Halpern curiam (Fed.Cir.2002).
Principi,