Marvin O. Johnson v. Eric K. Shinseki

appeals. to their claims and responses independent from Although

VA, many apparent pro this fact is not result, As it is not unrea- appellants.

se who prospective appellants,

sonable that waiting, may expect

are accustomed to long response time for a or not

wait up think to follow on an NOA.

know or

B. Conclusion that, existing precedent

Our establishes long prospective appellant’s as a inten- clear, put

tion is VA is on notice of his

intention to seek further review his

claim, the prospective appellant satis- through diligence requirement

fies the due filing,

the defective that is the end of the (Ed- Brandenburg, Bailey

matter. See

ward), Santana-Venegas, supra. all

Therefore, although I concur in the result by majority, respectful-

reached I must

ly holding dissent from its that “the due assessment, which is ‘relaxed’ in

diligence se, timely misfilings by pro pro-

cases of appellants, totality is based on the

spective surrounding the mis- circumstances

filing learning and actions taken after misfiling.” Ante at 222. JOHNSON, Appellant,

Marvin O. SHINSEKI, Secretary

Eric K. Affairs, Appellee.

Veterans

No. 10-1785. Appeals

United States Court of

for Veterans Claims.

Argued Dec. 2011. March 2013.

Decided Kansas, Carpenter, Topeka,

Kenneth Bates, Naperville, whom R. Edward Illinois, the appellant. was on the brief for Hageman, Shanti L. A. whom Will Gunn, Counsel; Camp- General R. Randall bell, Counsel; and Ni- Assistant General Hall, General Deputy sha C. Assistant brief, Counsel, Washing- were on all of ton, D.C., the appellee. for KASOLD, Judge, Before Chief HAGEL, LANCE, DAVIS, MOORMAN, SCHOELEN, PIETSCH, BARTLEY, Judges.1 assigned Judge Greenberg participate matter it was for a full court 1. did not in this because SCHOELEN, Although appellant states that he is Judge: appealing findings Board’s that he is through appeals O. Johnson Marvin disability rating not entitled to a in excess 14, 2010, Board of Veterans’ May counsel a right instability for knee 10% and an (Board) that denied decision Appeals right increased schedular knee rheu disability rating in excess of 10% for disability (degenerative changes), he (2) disease, disability rating matic heart a arguments makes no challenging the right disability, of for knee in excess 10% regarding ap Board’s determinations (3) disability compensation benefits for dia propriate rating schedular for those condi exposure mellitus on the basis of betes Additionally, Mr. no tions. Johnson makes (4) herbicides, reopening a claim for arguments challenging Board’s denial hyper for disability compensation benefits rating of a schedular in excess of 10% for appellant granted tension. The Board rheumatic heart disease. The Board’s de rating for insta separate disability 10% regard terminations therefore will The Board also bility right knee.2 Nicholson, be affirmed. See v. Coker an in remanded Mr. Johnson’s claim for Vet.App. (stating that an knee disability rating creased for a left appellant plead particu “must with some entitlement to a total disability and his error”), larity allegation rev’d on on unem- disability rating based individual Peake, grounds other sub Coker v. nom. (TDIU). Because the Board ployability (Fed.Cir.2008) Fed.Appx. (per cu did not reach a final decision on the re order); West, Vet.App. riam Hilkert v. matters, jurisdic manded the Court has no (1999) (en banc) 145, 151 (stating that the Ni Kirkpatrick tion over them. See v. appellant persuasion bears burden of (Fed.Cir.2005) cholson, 417 F.3d 1361 error). appeal on to show Board (holding ju that the does not have Court appellant does contest the Board’s claims). risdiction over remanded he determination that was not entitled to Mr. Johnson does not address extraschedular consideration of his disability Board’s denial of his claim for service-connected rheumatic heart disease compensation benefits for diabetes mellitus right knee under 38 C.F.R. 3.321(b)(1) (2012). or the there Board’s determination regard, In this Mr. to re was no new and material evidence argues Johnson the Board failed to open disability compensation a claim for adequate an statement of reasons provide hypertension. Accordingly, for Mr. John that he is not or bases for its conclusions any challenge to the son has abandoned entitled to a referral for extraschedular matters for heart disease and regarding Board’s decision these consideration his either an individual right and the need not address the Board knee or on a collective basis. Because the Sec- respect decision with to these matters. Gober, Vet.App. retary’s 535-36 38 C.F.R. Ford (1997) (claims appellant’s limiting not addressed abandoned). in- ratings are to individual disabilities is not pleadings considered finding, Court cannot dis- conferencing prior held favorable which the decision and was Nicholson, appointment his with the Court. See Court’s turb. See Medrano Operating (“The sec. permitted Procedures, Court is Internal VII(b)(l)(B). findings fact to a to reverse favorable pursuant made the Board to its claimant grant separate 2. The Board’s sche- 10% statutory authority.”). right instability dular for knee motion, there was no addi- repetitive or otherwise with the consistent right range of motion of erroneous, did not tional loss and the Board plainly Mr. examiner noted that analysis in its of knee. Id. The error prejudicial commit gait except Mr. Johnson’s heart Johnson had a normal whether to refer X- knee. Id. slight limp favoring right for extraschedular right knee basis, changes in the rays an individual showed mild arthritic consideration on examiner affirmed. knee. R. at 222. The right decision will be Board’s “[bjilateral degenerative knee diagnosed I. BACKGROUND disease,” of “mi- noting impression joint patello- in the degenerative changes nor Army served in the U.S. Mr. Johnson bilaterally.” R. at 221-22. joints femoral 1971. May to December from (R.) In March he Record at 846. 25, 2008, under- On March Mr. Johnson disability rat- for increased filed a claim for his ser- went a VA heart examination disabilities, ings for his service-connected disease. vice-connected rheumatic heart (then heart including rheumatic disease examiner concluded R. at 217-18. VA degenerative disabling), and rated 10% “no of valvular there was evidence (each right of the and left knee changes disease, myocardial on heart nor disease disabling). R. at 239. knee then rated 10% certainly examination and no physical 14, 2008, Mr. Johnson under- R. at symptoms On March or functional limitation.” pension and ex- compensation went a VA 218. joints. R. at 220-22. He amination of 18, 2008, office April regional On a VA he the VA examiner that had informed (RO) claims and con- denied Mr. Johnson’s in both knees. R. at daily, pain constant that he was not entitled to TDIU. cluded pain an ache 220. He characterized the appealed R. at 197-208. Mr. Johnson this occasionally sharp, became and he May R. at 36. On decision to the Board. aggravated by pain noted that was 14, 2010, the Board issued the decision stairs,

walking, bending, climbing and R. at 3-25. The Board appeal. here on that his knee standing. reported Id. He referral for extraschedular consid- denied walking and disability interfered Mr. heart disease and eration of Johnson’s Id. He took standing long periods. knee right disorder. occasionally used Tylenol pain for the heat, ice, braces, knee and a cane bilateral II. ANALYSIS At the time of the pain. to alleviate his of Disabilities A. Combination examination, reported VA Mr. Johnson self-employed detailing that he cars. was contends that Mr. Johnson R. at 221. language Secretary’s regula plain mild tenderness tion extraschedular evaluations regarding The examiner noted Secretary to both the right requires knees. Id. consider medially in the left knee, disability picture presented by an individu right the examiner Regarding deformity disability or al the service-connected noted that there was no decision, collectively. In its 221. There was full exten- disabilities swelling. R. at Mr. enti 0 did not consider Johnson’s right pain, knee with mild to Board sion pain medi- tlement to a referral for extraschedular degrees of flexion with mild on a col instability, crepitus. consideration for his disabilities ally, laxity, and no Mr. produce lective basis but determined Range testing of motion did and, weakness, incoordination, to a referral for Johnson was not entitled fatigue, or Secretary authority for either his to adopt apply extraschedular consideration disability ratings knee or his rheumatic heart a schedule of right based individually. The crux of issue in earning capacity spe- disease reduction from is whether injuries before cific injuries combination of requires VA to consider service- impairments based on the average of earn- connected disabilities on collective basis. ing capacity from resulting injuries such reviews the The Court civil occupations. See 38 1155. U.S.C. novo. See statutes and de authority, Pursuant 7261(a)(1); v. Principi, Lane U.S.C. has established a schedule (Fed.Cir.2003); Bradley F.3d guide that is “used as a in the evaluation of (2008). Peake, Vet.App. from all resulting types of dis- injuries eases and encountered as a result Determining regulation’s a statute’s or a military of or incident service.” 38 examining spe plain meaning requires C.F.R. 4.1 language cific at issue and the overall of the statute. v. Der structure Gardner particular disability Once a winski, (citing connected, been found to be service Bowen, Hosp. Bethesda Ass’n v. 485 U.S. applies the criteria established in diagnos 399, 403-05, 108 1255, 99 L.Ed.2d 460 (DCs) tic codes contained in the rating (1988)), Brown, v. sub nom. Gardner aff'd assign disability rating schedule to that (Fed.Cir.1993), aff'd, 5 F.3d 1456 513 U.S. “represents] practicably as far as can be 115, 118, 552, 115 S.Ct. 130 L.Ed.2d 462 average impairment determined the in (1994); Brown, see also Smith v. earning capacity resulting from such dis (Fed.Cir.1994) ... (“Only by 1523 injuries eases and and their residual condi full reference to the context of the whole in occupations.” tions civil 38 C.F.R. meaning can the court the of a plain find 4.1; Derwinski, § v. 1 see also Hunt Vet. Shinseki, Frederick v. 24 part.”); Vet.App. (1991) App. (stating 296 that the over (2011). review, 338 “On if the mean statutory regulatory purpose all the ing regulation of the is clear from its lan governing compensation scheme VA law is if guage, then that is the ‘end the mat schedule, ratings in the which reflected Nicholson, Tropf Vet.App. ter.’” 20 physical rates different mental and mala Gardner, (quoting 320 Brown v. upon earning capaci based diminished dies 552). 120, 115 at 513 U.S. ty pay “compensation to veterans when scheme, have, in service to their statutory they Under the honorable VA nation, in injury with from an suffered a loss that is reflected veterans disabilities ability living to earn a for during disease contracted active service the decreased families”); duty in and their 38 the line of are entitled to themselves C.F.R. 3.321(a). § The ultimate of a disability percentage service-connected benefits. 38 Vet.App. Peake, 1110; § disability rating assigned Thun v. to a veteran U.S.C. see (2008), adequate compensate for sub nom. Thun v. “considered 1 aff'd (Fed.Cir.2009). from working 572 F.3d 1366 considerable loss of time Shinseki 501, Congress proportionate exacerbations or illnesses granted Under 38 U.S.C. of the Secretary general rulemaking severity grades authori of the several disability.” Generally, 4.1. all ty prescribe “to all rules and C.F.R. disabilities, from “a necessary including arising which are to car those appropriate entity,” separate are rated ry single out the laws administered the Secre disease ly, ratings and then all of the individual tary.” Additionally, Congress granted explains disability that the schedule provided table using the are combined (2012). average impairment Esteban v. “represents § 4.25 See 38 C.F.R. Brown, It Vet.App. result- capacity occupations in civil earning disability compen (a) clear under VA Thus, thus ing disability.” from subsection appro system that VA assesses sation with the VA regulation is consistent on a dis disability rating priate schedular scheme, disability in which rat- disability Martinak basis. See ability-by-disability under the rat- ings assigned are Nicholson, ing to individual disabilities. See schedule disability rating schedule (stating that Martinak, supra, both Esteban and conditions under forth the terms and sets (b) “Exceptional is entitled Subsection pro is to disability compensation which The first sentence of cases.” a list through “[DC]s vided are based ratings reiterates that specific disease or applicable tables for earning upon average impairment injury”). that capacity and states statutory regulato- against It is readjust periodically shall promulgated ry framework VA experi- rating schedule accordance 3.321, is entitled “General which C.F.R. ence. The second sentence of subsection (a) Subsection Rating Considerations.”3 (b)(1) justice” to “accord to the states that language of this reiterates the schedular “exceptional case where that the 1155 and states disabili- of section inadequate,” found to be evaluations are evaluating, rating schedule is used for ty (in Sec- particular officials the “Under “degree of disabil- among things, other Director, retary of Benefits and Com- disability compensation.” ities in claims for Service”4) ap- are authorized to pensation reit- That also section an “extra-schedular evaluation portion prove erates of section 1155 3.321(a) (b)(1) provide: paragraph in an extra-schedu- forth this 3. 38 C.F.R. with the av- lar evaluation commensurate (a) rating The 1945 Use of schedule. earning impairment erage capacity due Rating will be Schedule for Disabilities exclusively dis- service-connected evaluating degree of disabilities used governing ability The or disabilities. disability compensation, dis- in claims for exceptional cases is: A norm in these eligibility ability pension, and in and death finding presents that the case such provisions contained determinations. The exceptional disability picture or unusual rating represent will far in the schedule as factors as inter- with such related marked determined, practicably the aver- as can frequent pe- employment with ference earning age impairment capacity in civil hospitalization as to render im- riods of resulting disability. occupations from regular application practical of the (b) Exceptional cases— schedular standards. Ratings Compensation. be based shall average practicable, upon that, as far as Secretary 4. The has advised the Court as earning impairments capacity with the 2011, April the title of "Director of Com- Secretary proviso shall additional longer pensation Service” no and Pension n exists, readjust sepa- from time to time this schedule position been and that has since experience. ratings in accordance positions: distinct "Director of rated into two therefore, justice, excep- To accord to the Compensation and "Director of Pen- Service” Secretary’s Fiduciary tional case where the schedular evalua- sion and Service.” Law, inadequate, the Un- tions are found to be n. 1. Because Second Memorandum Director, Secretary portion regulation particu- or the and this der for Benefits of the benefits, Service, compensation upon deal with Compensation and Pension lar case "Director, submission, position Court will refer to this field station is authorized Compensation Service.” approve of the criteria set on the basis

243 that are due to service-con- It is well if impairments established that meaning regulation of a disability or disabilities.” is unclear from nected language, the Court should defer to argues Mr. Johnson that the Board must Agency’s interpretation reg of its own and, referred, referral for if consider long ulation so as it is not inconsistent with Secretary for Benefits or the Di- Under the language regulation of the or otherwise rector, Service, Compensation must con- Nicholson, plainly erroneous. Smith v. awarding, an extraschedular sider (Fed.Cir.2006) 1344, (citing 451 F.3d 1349 effect of all service- based on combined Robbins, 452, 461-62, Auer v. 519 U.S. 117 a claimant’s “av- connected disabilities on 905, (1997)); S.Ct. 137 L.Ed.2d 79 Mason erage earning capacity.” Appellant’s Brief Shinseld, 1, (2012); v. Vet.App. 26 6 Ta (Br.) 3.321(b)(1). 11-12; at 38 C.F.R. Shinseld, v. tum 142 argument appears His to be based on the (2010). Supreme The U.S. Court held plural phrases use of the nouns “schedu- agency’s interpretation that an of its own “disability lar evaluations” and or disabili- regulations is entitled to substantial defer (b)(1). ties” in subsection The ence the courts. See States v. United that the argues plural use of the nouns Co., Cleveland Indians Baseball 532 U.S. phrases “sehedular evaluations” and “dis- 200, 202, 121 S.Ct. 149 L.Ed.2d 401 ability recognition or disabilities” is a (2001); Auer, 461-62, 117 519 U.S. at S.Ct. a veteran receive extraschedular rat- 905; Shalala, Thomas Univ. v. Jefferson disabilities, ings for one or more individual 504, 512, U.S. S.Ct. lan- plain and therefore contends that the (1994); Occupa L.Ed.2d 405 Martin v. guage regulation require does not Comm’n, Safety tional & Health Review consideration of an extraschedular 144, 151, 499 U.S. S.Ct. for the combined effect of service- (1991); Tallman, L.Ed.2d 117 Udall v. connected disabilities. 1, 16, 13 L.Ed.2d 616 U.S. high degree ap This of deference concludes, after a careful plies even when VA’s of a reading regulation, its context with during litiga is first advanced scheme, statutory in the overall and con Shinseki, tion. Reizenstein parties’ arguments, sideration of the (Fed.Cir.2009) (citing Cathedral subject competing Comm’n, Int’l Trade Candle Co. U.S. meanings, ambiguous point. and is on this (Fed.Cir.2005)). 1352, 1364 400 F.3d Shinseki, 1372, 1379 Heino v. See 683 F.3d (Fed.Cir.2012) (the of a structure statute Further, interpret when a court is ambigu can demonstrate that a is statute regulation, it “must ing an administrative ous); Principi, Otero-Castro Vet. con necessarily look to the administrative (“The principles basic App. meaning if the regulation struction of apply construing apply to statutes of the words used is in doubt.” Bowles v. equally construing regulations.” (citing to Co., & Seminole Rock Sand U.S. 1523)). Brown, Thus, at Smith 35 F.3d L.Ed. 1700 65 S.Ct. language it is not clear from the construction becomes The administrative regulation whether an extraschedular eval controlling weight plainly unless it is “of solely regula to be on a disabili is awarded erroneous or inconsistent with uation Peake, Id.; ty-by-disability basis or on the combined tion.” see also Haas v. (Fed.Cir.2008). dis In an ef effect of veteran’s service-connected F.3d interpret- that he has abilities. fort to demonstrate on the level of ability separately based a disabili- supporting regulation ed construction, Secretary unique symptoms associ- ty-by-disability severity and the Adjudi- current in the VA provision cites a disability. Section particular with the ated (Manu- Rewrite Manual cation Procedures 3.321(b) before an extrasche- requires that M21-1MR), claim that a is which states al considered, must evaluation is VA dular extraschedular consid- be to submitted severity level of initially compare the 3.321(b)(1) “if the schedu- eration under particular of a service-con- symptoms inadequate evaluations are considered lar crite- disability with the established nected disability.” See Manual for an individual for that rating in the schedule ria found iv, M21-1MR, Ill, subpt. ch. sec. pt. Thun, 3.321(b)(1); disability. See added). (emphasis B.5.c criteria at 115. If the apply regulation his interpreted reasonably the claimant’s disabili- describe in- and this only to individual disabilities veteran’s ty then the symptoms, level and substantial def- terpretation is entitled to contemplated picture is here erence. Because disability, the as- for that schedule whether extraschedular leaves in doubt appro- rating is deemed signed schedular be afforded on a disabil- consideration of an priate, and referral for consideration basis or based on the com- ity-by-disability rating is not warranted. multiple effect of service-connected bined Id., Thus, ap- disability-by-disability disabilities, VA’s apply is entitled to its own VA ambiguous regulation.5 regulatory is with the proach construction to the consistent Thun, (deferring 3.321(b)(1) at 1369 See and with the language of as an “au- provision M21-1MR the same disability compensation scheme. overall 3.321(b) re- interpretation” of thoritative disability rating sched- Because the VA authority RO and Board’s garding the disabling designed to consider the ule is of an ex- reject referral for consideration no separately, single disabilities effect of interpretation rating). traschedular This provision adequately will assess DC See to substantial deference. is entitled variety symptoms involved with Haas, (holding that the court should supra For exam- service-connected disabilities. reasonable defer to VA’s case, heart dis- ple, any in this rheumatic that is not inconsistent se not be con- symptoms per order would language regulation). disability. templated in the DCs for knee Indeed, Secretary’s disability-by-dis- Thus, multiple service-connected dis- when §of ability interpretation involved, are VA would never abilities regulato- statutory with the consistent disabili- able to determine that a veteran’s above, discussed under the ry scheme. As all of his service- ty picture resulting from scheme, dis- disability compensation adequately con- for each dis- connected disabilities ability ratings assigned are selects, agent, whom he informs the dissenting opinions criticizes the he or an One of the 5. 3.321(b). Depu- Secretary § he chose to have the because of Court of VA’s Director, Regulation ty VA Office of fully scope within the This is a decision that is Policy Management a statement and submit Secretary’s authority and it is not for of delegated regarding scope authority of Anyone question the Court to his choice. 3.321(b), Secretary § than the Under rather Secretary duly by the authorized who is Benefits, Compensation of the Director of behalf, and speak for him does so on his Service, Secretary major- himself. The or the recognized by the Court as should be ity complaint. disagrees with this It is not for Secretary. voice of the to the whether this Court to dictate claims, templated by Secretary’s the standards or criteria or that the interpreta- in the rating provision found schedule. tion of this is inconsistent with regulatory the overall statutory and Secretary’s interpretation of scheme. 3.321(b) § regu is also consistent with the After reviewing language lations effective of governing dates. 3.321(b)(3) 3.321(b), § § specifies how to deter ap- C.F.R. context in which it is mine the effective of an plied, date extraschedu and the Secretary’s interpretation of rating, providing lar that effective 3.321(b)(1), “[t]he § the Court concludes that the of date these extra-schedular evaluations Secretary’s interpretation is entitled to granting increasing benefits will be in substantial deference because it un- is not 3.400(b)(1) accordance with and as to reasonable, erroneous, plainly or inconsis- original reopened and claims and in accor tent with the regulation statutory or the 3.400(o) §with dance claims for in and regulatory scheme when viewed aas (b)(1) creased benefits.” Subsections and whole.6 See Smith v. Nicholson and Ta- (o) (2), and of 3.400 all set an effective tum, reasons, supra. both For these date in accordance with events that relate Court concludes that the Board was not claim, single disability to a such as the required to consider whether Mr. Johnson However, receipt date of of the claim. a was entitled referral for extraschedular may separate disability veteran file com right consideration of his knee pensation separate claims for conditions at and rheumatic heart disease on a collective times, different each with its own date of basis. Gober, filing. See v. Elkins B. Individual Disabilities (2000) (“[T]here requirement is no Alternatively, argues Mr. Johnson that that a veteran’s for relief various claims denying the Board erred in referral for simultaneously adjudicated, filed and ei consideration of an extraschedular disabili- upon appeal. ther initial review or on ty rating for his rheumatic heart disease Rather, recognized we have right knee on an individual- unique statutory process adjudication 5-10, App. basis. Br. at 12-3. through may which veterans seek benefits Specifically, argues he the Board necessarily require that the different is give adequate failed to statement of sues or claims of a case be resolved at reasons or for its that refer- bases decision times, by agency different orig both regard, ral was not warranted. In this he jurisdiction appeal.”). inal on Given compare contends that the Board failed to provision that the effective-date in subsec (b)(3) severity symptomatology “the level of specifies tion how to set an effective of the claimant’s individual service-con- only date where an extraschedular evalua claim, nected with the established single-disability disabilities] tion is based on a criteria found in the schedule for language is difficult conclude that the 3.321(b)(1) clearly contemplates disability,” required extras Thun, chedular consideration multiple-dis step supra, one basis, Thun, ability which involve Br. multiple App. Regarding step at 7. two of issue, attempts trolling concurring 6. Mr. Johnson also to bolster his law on this and a argument by relying concurring opin- opinion binding on the is not on the Court. See 408, 412-13, Wilson, Brambley Principi, Maryland ion in 519 U.S. J., However, (1997) (ex- (Steinberg, concurring). 117 S.Ct. 137 L.Ed.2d 41 adopted Judge plaining concurring opin- in a Court has never Stein- that statements berg's Brambley binding precedent). concurrence in as the con- ion do not constitute West, 12 See Hilkert v. Vet. ployment. failed to dis- contends that the Board he (1999) (en banc), per statements, that lay App. which indicated cuss aff'd (Fed.Cir.2000) (ta curiam, inter- have caused a marked his disabilities ble) bears the (holding appellant that the argues He that employment. ference with demonstrating appeal). error on in the Board’s statement burden these deficiencies reasons, concludes For these Court require remand. of reasons or bases that Mr. Johnson fails to demonstrate required provide The Board is denying for the Board’s reasons or bases the reasons or bases written statement of consideration referral for extraschedular conclusions, adequate findings for its All inadequate. for heart disease are See an to understand appellant to enable Gilbert, Caluza, supra. all day, the Board’s decision as basis for precise right Mr. Johnson’s knee dis- Regarding review in this Court. well as to facilitate that, ability, the Board concluded under 7104(d)(1); Brown, 7 Allday v. 38 U.S.C. Thun, “symptoms step one of associat- (1995); v. Der Vet.App. Gilbert right with the knee disorder are reason- ed winski, To Vet.App. 56-57 separately as- ably contemplated comply requirement, the Board instability signed evaluations 10[%] credibility probative analyze must Further, R. at 16. limitation of motion.” evidence, for the evi value of the account that, because the rec- the Board concluded persuasive it finds to be dence Mr. has continued ord shows that Johnson provide the reasons for unpersuasive, and years any for a number of without to work any evidence fa rejection its material right knee has caused evidence that his Brown, vorable to the claimant. Caluza employment interference” with “marked (1995), per cu Vet.App. aff'd frequent hospitalizations, pic- his (Fed.Cir.1996) (table); riam, 78 F.3d 604 or unusual. Id. Mr. exceptional ture is not Gilbert, 1 at 57. Johnson is correct that the Board decision disease, heart Regarding Mr. Johnson’s comparing does not contain a discussion that the record did the Board concluded with the criteria in disability picture his disability picture that his not demonstrate disability. 22 schedules for that exceptional was so or unusual as to render not dis- Vet.App. at 115. The Board does rating. the available schedular impractical schedule criteria cuss whether the so, doing point- R. at 15-16. In the Board instability and limitation of flex- regarding that the medical evidence demon- ed out reasonably describe Mr. ion or extension currently strates that Mr. Johnson has no right disability, Johnson’s knee which is R. at 16. Ad- residuals of heart disease. by difficulty standing manifested and walk- ditionally, the Board concluded that there Accordingly, time. ing for an extended any is no evidence that Mr. Johnson has that the Board’s discussion the Court finds frequent hospital- unusual factors such as step inadequate. under one of Thun is with em- izations or marked interference Nonetheless, finds that related to his heart disease. Id. Court ployment John- the Board’s error was harmless. See 38 despite The observes that Mr. 7261(b); Conway Principi, failed to argument son’s the Board U.S.C. (Fed.Cir.2004). statements, not F.3d lay consider his he does Thun, finding, step under two of point any lay indicating evidence that he Board’s right disorder symptoms or that that Mr. Johnson’s knee any heart-related exceptional frequent hospital- present heart causes does not his disease with related factors such as picture marked interference with em- ization or Sanders, employment interference with or warranted. See marked Shinseki frequent hospitalization per is clear and U.S. 173 L.Ed.2d 532 Mr. judicial Contrary mits review. contention, the Board consid

Johnson’s C. TDIU Remand lay regard of record ered statements ing right disability the effects of his knee Mr. Johnson’s final argument is that the employment. on his The Board described adjudicated Board should not have his en- lay general those statements its discus titlement to an rating extraschedular be- evidence, acknowledged sion of the cause the complete record is not as to the analysis addressing its section extrasche- effect of his service-connected disabilities July dular consideration the 2009 state employment. on his Br. App. at 13-16. family ments of Mr. Johnson’s members Mr. Johnson relies on the Court’s decision concerning capacity. his work The Board in Bramhley to bolster his In argument. found, however, Mr. then that Johnson Brambley, specifically the Board remand- employment was able to maintain at two rating ed the issue of a fur- TDIU for jobs and that there was no evidence in the development regarding ther the veteran’s indicating right record that his knee employability, but also determined that the caused marked interference with that em properly developed record was on is- ployment. To the extent that Mr. Johnson sue of whether each demonstrat- that the not discuss concerned Board did ed a marked interference with employment potentially lay relevant statements within purposes for of extraschedular evaluation. portion spe of the Board’s statement VetApp. at 24. The found it Court cifically addressing extraschedular consid was difficult to understand how the Board eration, requirement there is no could maintain divergent positions on the any evidence in particular Board discuss completeness of the record. The Court section of its decision. A Board statement held that because both TDIU and extras- whole, generally should be read as a Prick required chedular consideration “a com- Nicholson, ett v. 375 plete picture appellant’s service- (2006), permits and if that statement connected disabilities and their effect on understanding judicial and facilitates re ..., his employability premature was for view of the material issues of fact and law the Board to decline extras- [referral for] record, presented on the then it is ade chedular consideration where the record quate. Allday, supra, See The Court finds significantly incomplete was in a number appeal, that the Board decision on consid probative of relevant areas of the issue of entirety, ered its meets this standard. Id., employability.” Further, Mr. Johnson has not shown that Here, the Board did not remand finding step the Board’s under two of rating entitlement to a because TDIU clearly Thun erroneous based on incomplete regarding record was record as a whole. Because Mr. Johnson employability any effect of Mr. John preju has not established that he has been son’s service-connected disabilities for by any diced error that the Board which the Board had denied referral for denying have committed in him entitle Instead, extraschedular consideration. ment to referral for consideration of an Board remanded the TDIU issue because right for his knee to remand the disability, already affirms the Board’s it had determined disability rating issue of the appropriate decision that an extraschedular when, right Mr. Johnson’s knee is not for left knee without waiv- (Federal Federal Circuit Cir peals for the RO consideration to initial ing right his cuit) has shown for the Secre traditionally disability, appel- left knee evidence of regulatory of his own tary’s interpretation treatment records new VA lant submitted words, knee even when severity of his left addressing the Reiz that, during litigation, be- first been advanced Board concluded disability. The Shinseki, 583 F.3d knee enstein v. of the left disposition cause the RO’s v. U.S. (citing Candle Co. entitlement to Cathedral appellant’s effect the could Comm’n, TDIU, Because Int’l Trade remand was warranted. a (2005)). high de Today, we measure considering practice we lawful VA’s find against regulation a VA gree of deference extraschedular consideration for referral face, that, easily most con appears on its individual disabil- only on the basis of each meaning convey only to one of disabil- strued showing degree ity, evidence —that dis collective service-connected relevant to veteran’s ity the left knee is not determining in may be considered of an extrasche- abilities referral for consideration an extraschedular rat whether referral for appellant’s for the other ser- dular however, Secretary, ing is warranted. The This is not a vice-connected disabilities. meaning for the an alternative inconsis- has offered where the Board reached an case plausible, in the that is completeness language regarding tent decision obvious; Therefore, provides and he albeit not the Court is not of the record. change a future asserting affidavit that the Board erred when persuaded clarify his offered alter will Mr. Johnson’s entitlement re- decided of a veter meaning i.e., native that each of extraschedular ferral for consideration — sepa an’s disabilities is to be- considered ratings. 3.321(b)(1). rately under III. CONCLUSION Secretary’s interpre- stated Without the appellant’s After consideration were intended tation as to what his words re- Secretary’s pleadings, and a and the have convey, I believe a remand would record, May the Board’s view of warranted here based on the Board’s been be- regarding the matters failure, decision extras- denying in referral for an fore the are AFFIRMED. legal stan- rating, to consider chedular 3.321(b)(1)

dard of 38 C.F.R. SCHOELEN, opinion of Judge, filed the seemingly from the otherwise sprouts the Court. language used plain meaning standard is whether regulation. legal This MOORMAN, Judge, concurring filed a in- “disability picture” that appellant’s opinion. service-connected disabilities cludes KASOLD, (as Judge, Chief filed and left knees well as right both the dissenting opinion. disease) warranted heart service-connected rating under referral for an extraschedular DAVIS, dissenting opinion Judge, filed 3.321(b)(1) the basis of his 38 C.F.R. BARTLEY, Judge, joined. in which collective service-connected disabilities. MOORMAN, in the Judge, concurring Secretary’s recent- In the absence of the result: apply I ly interpretation, would asserted that words have mean- recog- simple principle I agreeing majority,

In with the And, even in the law and high degree ing. nize that we are bound law, should plain words Ap- implementing of deference that the U.S. Court just what I it to Secretary, choose mean—neither plain meanings. have added), (emphasis ad- more nor less.’ C.F.R. spe- exceptional require cases is,’ Alice,

dresses said question ‘The ‘whether justice.” to “accord cial review order you many can make words mean so “cases,” “claims,” are those in These things.’ different ” are which the schedular “evaluations is,’ question ‘The Humpty Dumpty, said such cir- inadequate. found to be Under ‘which is to be master —that’s all.’ cumstances, secretary for bene- the under Through Looking Carroll, Lewis compensation director of the fits or the (1865), http:// ch. available at Glass, VI an extras- approve service is authorized to www.gutenberg.org/ebooks/23718. with chedular evaluation commensurate 3.321(b)(1), §of Although the words on average earning capacity impairment review, appeared initial to me to be clear exclusively to the service-connected due face, Secretary their I must afford the “disability Secretary or disabilities.” plausible deference in the interpretation of norm in these governing sets forth the Agency’s regulation. his own Smith v. A exceptional finding cases: (Fed. Nicholson, 451 F.3d 1349-50 presents exceptional such an “case” Cir.2006) (stating that the in Secretary’s ” re- “disability picture unusual with such “ terpretation of his own is ‘of interference with lated factors as marked it controlling weight plainly unless erro employment frequent periods hospi- ” regulation’ neous or inconsistent with the impractical ap- talization as to render (quoting Rock & Bowles Seminole Sand regular of the schedular “stan- plication Co., 410, 414, U.S. dards.” (1945))); Robbins, L.Ed. 1700 see Auer v. statements, regulatory plainly ex-

Clear 452, 461-62, 519 U.S. 117 S.Ct. using singular plural both pressed, prec I do based on L.Ed.2d so me, words, it seems to important forms edent, Secretary the fact that the despite as writ- always applied almost should be in changed regulation 1961 to discuss plain true especially ten. This when extraschedular consideration for the veter language regulation of the leads to a more “disability picture” and to complete an’s expansive, pro-veteran, application they add the words “or disabilities” where potentially gives the rule. To do otherwise previously appeared. had not See Secre plain language heed not to that favors Law, tary’s Memorandum of Attachment but, rather, injured guiding veterans D; Secretary’s Second Memorandum of interpretive principles that mirror those Law, And, despite I do so Attachment J. Carroll’s, Through in enunciated Lewis plural the fact that the use of the “disabili Looking Glass: ties,” “disability” following, phrase, in a “or,” you by “glory”,’ conjunction

T what mean in the don’t know and the defining “disability appears Alice consistent said. both an individual dis picture” to include contemptuous- smiled Humpty Dumpty in ability aggregate. and disabilities you. I tell ly. you ‘Of course don’t—till ar- I meant “there’s nice knock-down Further, Secretary’s of- I note that ’ gument you!” meaning language comes sub- fered “a knock- “glory” ‘But doesn’t mean nice observation sequent to this Court’s argument”,’ objected. down Alice is well settled that ex- “[ajlthough it (under word,’ Dumpty [ I traschedular consideration Humpty “When use 3.321(b)(1)) tone, said, and TDIU claims are not ] in rather a scornful ‘it means clarify ... will his offered ‘inextricably intertwined’ necessarily i.e., words, of a that each complete meaning of these require adjudications here both considered is to be veteran’s disabilities service-connected picture appellant’s always has separately under employa- on his and their effect disabilities were in- Secretary’s what the words Principi, been bility.” Brambley v. omitted) (citation convey. tended to (emphasis noted Judge specifically One original). recently made The Federal Circuit regula- of this that the words Brambley the mere fact that abundantly clear that disabilities indicated tion opportunity ample has had aggregate in the considered were to a regulations to conform to revise his case war- addressing exceptional when not do meaning, but did currently asserted ranting extraschedular consideration: so, In consequence. is of no Walker application in its Board erred [T]he (Fed.Cir. Shinseki, 1338-39 by failing to determine regulation the 2013), panel of that court a unanimous service-connect- appellant’s whether the interpre newly that a asserted concluded him a whole entitled to ed disabilities as 3.303(b) is con regulation tation of VA’s extraschedular-rating consideration un- following circum trolling despite the 8.321(b)(1). evaluates a When VA der (1) in this acquiesced VA had stances: consideration, case for of 38 CFR interpretation Court’s the examination of regulation the directs (2) 3.303(b) not years; for 15 VA had “average earning capacity the veteran’s contrary meaning regula to the asserted a exclusively his due to ser- impairment briefing of the tion in its initial Walker disabilities,” disability or vice-connected in either or the Federal case this Court (em- J., (Steinberg, concurring) at Id. 26 (3) Circuit; had issued a Notice of VA in phasis original). (with man Proposed Rulemaking in 2010 by the Benefits datory review Veterans thereafter, took no action Secretary, Administration, Counsel, and VA General regulation to conform to his to amend be Management Budget the Office of in- interpretation and presently asserted Register), publication fore in the Federal of these words. Had he meaning tended holding fully which embraced this Court’s Steinberg’s unambigu- paid Judge heed to meaning respect interpretation with to the warning concerning plain the ous (4) sought Secretary, during regulation;7 VA had regulation, of his of meaning despite application Brambley, could contest that years these since past meaning precedential in several to clari- the same easily changed have 1997; had not con since VA mean- decisions fy presently and reflect his asserted Instead, the Federal Circuit’s own use Secretary has waited tested ing. Peake, interpretation an same Groves present litigation to submit until (Fed.Cir.2008); n. 1 change a 524 F.3d asserting affidavit future injury during or the an or disease service Secretary’s Supplementary Information 7. The continuing signs presumptive period, of or accompanying proposed rule stated: relationship symptoms, between and of 5.243(d), portions Proposed § based signs symptoms over or demonstrated 3.303(b), provide would rules for current years and the veteran’s current disabili- establishing based on service connection Gober, Vet.App. ty. Savage v. See continuity signs symptoms. That or is, apply, chronicity provisions do not if the 53,744, 53,749 1, 2010) (Sept. Fed.Reg. if there grant VA service connection will Rule). signs symptoms (Proposed competent evidence an alternative inter- adopted Supreme VA Court has “long applied ‘the pretation only after the Federal Circuit canon that provisions for benefits to mem- briefing following directed additional oral bers of the Armed Services are to be ” argument. construed the beneficiaries’ favor.’ (quoting King Hosp., v. St. Vincent’s Therefore, although interpretation VA’s U.S. 220-21 n. 112 S.Ct. regulation may hang of its on the thinnest (1991))). Likewise, L.Ed.2d 578 Fed- thread, precedent requires Federal Circuit eral Circuit has recognized that “[t]he despite deference an alternative reading of disability compensation system is not appears clear on its Court, meant to be a ... stratagem deny face and favors veterans. com- This duty which has a to follow pensation the Federal to a veteran who has a valid matters, precedents Circuit’s in such thus Peake, claim.” Comer v. Secretary’s interpreta-

must defer to the (Fed.Cir.2009). question I whether tion in the case now before the Court. judicial precedents for reviewing VA’s always should result in the

In applying the Federal deci- Circuit’s same level of deference afforded to the sions, grounded on Supreme U.S. interpretation of regulations promul- such precedent, concerning the due to deference gated by agencies charged regulating agency its of its own practices, business intellectual regulations, property, I reluctantly conclude that the all, presented plausible, even international trade. After VA serves strained, though reading purpose unique alternative of among agencies, Federal that warrants an affirmance legal duty characterized to assist its I Board’s decision. therefore con- claims, perfecting just claimants in their cur in the majority opinion in this case. supported by legislation requiring that the benefit of the given doubt must be to such

However, this case has caused me to claimants, further undergirded by and ponder special whether rules of construc- uniquely pro-veteran, agen- nonadversarial tion should be in applied regulations VA Sanders, cy process. See Shinseki v. circumstances such as these. The U.S. 396, 412, 1696, U.S. 129 S.Ct. 173 L.Ed.2d Supreme recognized Court has that (2009) (“Congress has made clear that statutes affecting veterans benefits should ordinary is not an Per- agency.”). VA applied pro-veteran be read and in a man- VA, haps agency as an whose mission Gardner, 115, ner. See Brown v. 513 U.S. 120, (1994) statement in is etched stone at the Lincoln 115 S.Ct. 130 L.Ed.2d 462 part Memorial and was formulated as of (ruling against the Government where the President Lincoln’s Ad- statutory Inaugural text and Second “reasonable inferences from it” dress: “to care for him who shall have supported position); the veteran’s widow, the battle and and his see also Henderson ex rel. Henderson v. borne for his — Shinseki, -, should, case, in U.S. this be afforded orphan,”8 (2011) 1206, 179 (stating judicial L.Ed.2d 159 a less strict level of deference.9 Gardner, 8. In these words became VA's motto 513 U.S. at 115 S.Ct. 552. Also, plaques Supreme recently and were articulated etched on which flank the deference, observing headquarters aptly main a lower standard of entrance to VA’s in Wash- that, practice deferring agen- ington, to an ’’[o]ur DC. regu- cy’s interpretation ambiguous own of its , many regulations undoubtedly important I9. further note that of VA’s lations advan- but, they tages, practice were drafted at a time when were not also creates a risk that subject judicial scrutiny any agencies promulgate vague open- in form. See will that as a noting it is worth prejudice, are con- generally regulations That VA’s simply wrong.10 law it is in need matter of dire organized, not well fusing, declara- is reflected of reformulation June accompanying appellee’s tion I. ERRONEOUS FIRST in the instant memorandum of law CONCLUSION case, cases many of the case. This indeed Overview Court, manifest the by this makes

decided The regulations. clearly for written need outset, of the issue At the an overview provided, such clarification sooner well as what is presented, how it is as families, and their sooner veterans issue, not at is warranted. courts, need to defer longer and VA will no rating schedule with as has established a meaning” to the “intended that the RO and disability ratings signed dec- were written and then modified to veterans with disabili Board award for- review. I look judicial ades before degree of dis generally on the ties based day. ward to it has on a veteran’s ability and the effect earning capacity, but based sometimes KASOLD, dissenting: Judge, Chief on social func factors such as effect other daily activities. Hens tioning or effect on my colleagues for great respect With Brown, 155, 162 ley are majority, two of their conclusions (“VA’s for is constructed rating schedule wrong, with one such conclusion simply of dis establishing levels purpose effect on veter- having significant adverse purposes based ability compensation The first process. claims ans and earning ca ‘average impairment majority’s upon is the find- and foremost error injuries or particular from pacity resulting ambiguity in a clear ing 1155)); see ambiguity (quoting diseases.” U.S.C. solely on an assertion of based (“The percent § 4.1 also 38 C.F.R. briefing arguments presented in the far can ratings represent practi as Secretary, age which by the counsel to average impair cably to be determined the majority effectively to defer causes the from capacity resulting regu- earning ment redrafting of an otherwise clear injuries and their resid lation, such diseases and guise interpretation. under the occupations.”); in civil com majority’s appar- ual conditions The second error is the (2012) 4.130, DC 9411 pare 38 C.F.R. holding adequate ent that to be upon “[ojccupa- (evaluating PTSD based pre- must follow Board’s statement discussion; with 38 although impairment”), tional and social order of scribed (2012) 4.88b, (evaluating to the result in C.F.R. DC holding nonconsequential is syndrome upon based majority fatigue find no chronic because the this case dictum, appears finding and to they interpret favorable that can later ended they Christopher language see fit.” v. SmithKline of 38 plain The misstate the law. Corporation,-U.S.-, 132 S.Ct. Beecham 7261(a)(3) the Court to U.S.C. authorizes 2156, 2168, 183 L.Ed.2d 153 (other findings than those de- ... "set aside i.e., subsection,” (4) in clause of this scribed majority gratuitously that the 10. I also note "findings to the claim- of material fact adverse Nicholson, favorably cite Medrano v. alia, ") are, "arbitrary, capri- that inter ant Vet.App. in note ante at cious,” right,” "in "contrary to constitutional proposition the Court "can- for the statutory jurisdiction,” or "without excess finding to a veteran. not disturb” a favorable required by law.” procedure observance of correctly, Although quoted Medrano is added). (emphasis § 7261 "cannot disturb” a 38 U.S.C. concept that the Court degree fatigue disability picture to which “restricts routine when the total activities”). daily disability picture veteran —a based on all of a veteran’s disabilities and the combined Also, justice exceptional to accord they effect have on employability and cases where there are unusual factors earnings capacity exceptional or un- —is present rating and the schedule does not usual and is not contemplated by the rat- an adequately earning address individual’s ing average schedule’s focus on earning capacity impairment disability, due to capacity impairment for each individual Secretary has authorized the under secre disability. (USB) tary for benefits or the director of (Di compensation pension Secretary’s service acknowledges counsel rector), to an rating. Secretary award extraschedular that the legal authority has the 3.321(b) (2012). 38 C.F.R. Neither the to authorize an disability extraschedular RO nor the Board authorized to award based on the complete disability Rather, veteran, rating. picture extraschedular the RO of a but counsel argues and Board are tasked with determining that the has not done so. Rath- warranted, er, might whether such a rating argues counsel that the Secretary has delegated such referral for USB or Director to the USB and Director the consideration purposes authority is warranted. For to award an extraschedular dis- review, of our required ability rating only the Board is for each individual dis- such possible address referral whenever ability, disability pic- based on the limited by the issue is raised a veteran or other ture associated with the effects of that record, and, reasonably wise raised on a employment veteran’s denied, stated, if provide earnings ability. referral is reasons or Otherwise denying Secretary’s bases for such referral. See counsel argues Gu that neither the Principi, Vet.App. tierrez v. nor the USB Director award an ex- (Board’s flawed reasoning when it fails to traschedular based on a adequately discuss evidence in support disability picture. veteran’s total Accord- claim); Gober, Thompson ingly, Secretary’s argues counsel (2000) (Board provide must an there is no reason for the Board to consid- adequate statement of er possible reasons bases and address referral for an rejection any “for its disability rating material evidence based on claimant”); West, favorable to the Pond v. total picture, veteran’s (1999) (Board 12 Vet.App. is re therefore there is no error. quired develop reasonably all issues Significantly, the is not whether issue below); Brown, raised Talbert v. 7 Vet. the or Director USB should have awarded (1995) 352,

App. (noting that the Board disability rating an extraschedular on the reasonably must address raised issues and complete disability picture veteran’s based not obligated is to “conduct an exercise in on all disabilities and the combined effect prognostication”). they employability earnings have on and Rather, dispute

There is no as to the the capacity. Board’s the issue is whether obligation authority to evaluate whether referral for or Director the USB even have award; extraschedular consideration is to make such an if then re- yes, warranted regard disability. an required to individual mand is so that the Board Rather, below, the issue whether is the Board has address the issue. As discussed duty to of possible pursuant plain language consider and address to the 3.321(b), referral for extraschedular consideration the USB and Director have of although majority not I also note by Board erred authority,11 and the 3.321(b), §in ambiguity claim find Mr. Johnson’s the Court discussing whether of counsel to accept argument for further at least have been remanded should ambiguity, to an there is Secretary entitlement development possible of disability rating on a collec- do not acquiescence extraschedular their numbers and tive-disability ambiguous. basis. is If mean that the so, Hans Andersen’s it were Christian Something Ambiguous is

Saying never New Clothes”12 Emperor’s “The not Make it So Does ac- gained the renown would have Secretary for the ar Although counsel am- finding decisions quired, appellate 3.321(b) ambiguous, is and his gues that never be reversed biguity would review, sim is cause for serious argument See, Supreme e.g., Chem. Court. Mfrs. something ambiguous is does ply saying Council, Natural Res. Ass’n v. Defense Nicholson, 20 Tropf v. make it so. See not 1102, Inc., 116, 124-25, 105 470 U.S. S.Ct. (2006) (“[A] regula n. 1 (1985)(reversing finding 84 L.Ed.2d ambiguous merely because tion is for the Appeals of the Court of U.S. Secretary litigation position takes a that an amendment to the Fourth Circuit regu plain language contradicts the ambiguous); Act was Smith Water Clean lation.”); SA. v. see also Stolt-Nielsen Illinois, 91, 91, 105 469 U.S. S.Ct. 662, 130 Corp., Int’l 559 U.S. AnimalFeeds (1984) (reversing the Illi- 83 L.Ed.2d 488 1758, 1769 n. 176 L.Ed.2d 605 S.Ct. finding that the de- Supreme nois Court’s something so (“[M]erely saying police continued responses fendant’s ”). make it so.... As discussed does not request initial questioning rendered his below, plain wording promulgating ambiguous). counsel history regulation clearly reflect the Moreover, authority although Lewis Carroll’s Secretary’s delegation of Dumpty might define words as he Humpty an based on a award Glass, the arising Through Looking wishes in disability picture veteran’s total Moreover, giv are words in our laws and from disabilities. contextual, ordinary meaning. en their Secretary for the fails his multi counsel Gardner, See, e.g., Brown v. 513 U.S. explain why regula assertions to ple 118, 115 130 L.Ed.2d 462 interpreted limiting tion should not of definition (“Ambiguity creature authority of the USB and Director statutory regula possibilities [or based on a al but award an extraschedular context.”); tory] Tropf, Vet.App. at 321 disability picture. complete veteran’s many being talked into Secretary of his citizens Tellingly, for the did not 11. counsel believing wearing from the USB or the Di- new submit a statement rector, he was a beautiful set matter, clothes, for that re- or the when he wore none at all—is well delegated garding scope authority believing example people some cited as reason, 3.321(b). only For whatever See, thing e.g., Aber to be fact that is not. deputy is one from the statement submitted Stores, Eagle & Fitch Inc. v. Am. crombie Regulation Policy of the Office of director Inc., (6th Outfitters, Cir. Management Department for the of Veterans 2002) (using "Emperor’s analo New Clothes” Director) (Deputy person respon- Affairs —the gy); see also Andersen, The Hans Christian redrafting regulations. for See also sible trans., (Jean Her Hersholt Complete Andersen note 4. infra 1949), http://www. itage at Press available anderson.sdu.dk/vaerk/hershold/TheEmperors NewClothes_e.html. Although story, Emper- "The 12. a children’s emper- an or's New Clothes”—which involves

255 (“[A] ambiguous only paragraph is when criteria set forth in this an n. 1 statute ordinary meaning of application extra-schedular evaluation commensu- to the words and rules of construction rate with the average earning capacity regulation fails to plain language of impairment exclusively due to the ser- issue.”); question answer the at see also disability vice-connected or disabilities. United, Sav. Ass’n Tex. v. Timbers governing exceptional The norm in these Assocs., 365, 371, 484 Inwood Forest U.S. finding pres- cases is: A that the case (1988) (stat 626, 98 L.Ed.2d 740 108 S.Ct. exceptional ents such an or unusual dis- provision seem am ing “[a] ability picture with such related factors by the biguous in isolation is often clarified employ- as marked interference with statutory scheme—be remainder frequent periods hospitaliza- ment or terminology is used else cause same impractical applica- tion as to render meaning where in a context that makes its regular tion of the schedular standards. permissi one of the only clear or because added). (emphasis C.F.R. effect meanings produces ble a substantive addressing Rather than the situation that is with the rest of the law” compatible where “a schedular evaluation” is inade- (citations omitted)); v. Derwin Gardner quate, which a focus would indicate (“Determin ski, 584, disability independently, each evaluation ing plain meaning requires a statute’s ex plural addresses the situa- amining specific language at issue and tion where “the schedular evaluations” are (citing the overall structure of the statute.” inadequate, encompass which can an indi- Bowen, Hosp. Bethesda Ass’n v. 485 U.S. disability vidual evaluation as well as mul- 399, 403-05, 108 S.Ct. 99 L.Ed.2d 460 Similarly, Id. tiple disability evaluations. (1988))), Brown, sub nom. Gardner aff'd an limiting rather than criteria for (Fed.Cir.), aff'd, 5 F.3d 1456 513 U.S. exception- extraschedular evaluation to L.Ed.2d 462 115 S.Ct. disability al case where an individual Regulation’s Language The Plain earnings impairment beyond the causes granted Substantial to the deference average impairment, regulation explic- Secretary’s interpretation regu of his own itly notes that an extraschedular evalua- long “plainly lation so as it is not errone earnings impairment tion is to be based on regulation.” ous or inconsistent with the beyond average by “disability caused Robbins, 452, 461, Auer v. U.S. disabilities,” clearly contemplates which (1997); also S.Ct. L.Ed.2d see impairment overall caused the disabili- v. Nicholson, Smith 1349-50 collectively. individually ties as well as (Fed.Cir.2006) (citing Bowles v. Seminole “an Tellingly, authorizes Co., 410, 414, ” Rock & Sand 325 U.S. which, in the “extraschedular” evaluation (1945)). 89 L.Ed. 1700 being context of the schedular evaluations regulation governing extraschedular evalua- inadequate and the extraschedular reads, in pertinent part: consideration being earnings impair- based on the tion disabilities, therefore, re- justice, To accord to the ex- ment due to where the schedular eval- flects that the extraschedular evaluation ceptional case composite inadequate, the can be done on an individual or uations are found to be Also, norm governing Benefits or the Di- basis. Under for rector, considering Pension Ser- whether Compensation and vice, submission, predicated evaluation should be awarded is upon field station or unusual approve exceptional authorized to on the basis of the on the for au- as the basis veteran, which, “justice” need to cite in the con- picture un- evaluation impairment thorizing an extraschedular determining earnings of text to be intended delegation less the was certainly disability or disabilities due to the broad, reason to twist and there is no disability complete veteran’s envisions the only permit- “justice” of as disability interpretation or due to one picture, whether lim- on an evaluation a ting extraschedular multiple disabilities. ited, individual-disability If the Sec- basis. for authoriz- Additionally, predicate the an to limit the criteria for retary wanted “[t]o evaluation is ing an extraschedular disability to a evaluation Secretary Although the justice.” accord indi- only single, with a picture associated only on a dis- justice could have accorded so; he could have done he disability vidual basis, of language the ability-by-disability not, yet has not done so.13 did and containing phrase, as the sentence the ar Although counsel for regula- the entire language the of well as to regulation’s in- the reference tion, limiting gues support such a does “disability or disabilities” connotes extras- be inconsis- which also would terpretation, for one or more indi according chedular evaluation concept of tent with the broad to an evalu opposed as regula- under the vidual disabilities justice. example, For of the collective tion, ation based on effect right-hip, right- a service-connected disabilities, interpreta such an knee, multiple right-ankle disability assessed and degree redundancy a of to tion ascribes individually, might employment not affect such a regulation the the constrained beyond basis on individual —and it “accordpng] justice” view of by the dis- degree envisioned individual —that contrary would be to the well-established but—when viewed collec- ability ratings, given be all rule that effect must to might significantly tively disabilities —the regula expressed legislation the Secre- words employment. Nothing in affect Nicholson, v. Roper con- tion. regulation limits extraschedular tary’s that “the (holding disability-by-disability a as- to sideration sessment; indeed, statutory regulatory scheme ‘should regulation the states Moreover, given that effect is to all as the so opposite. inasmuch construed will be in provisions, part its so that no authority to issue Secretary has broad or superfluous, insignifi- void operative was no regulations, 38 U.S.C. there (3d Ashcroft, 328 F.3d Deputy 13. The Director filed statement Cf. Amanfi Cir.2003) Secretary's supplemental Attorney memoran- (noting first General Deputy Director’s statement reflects interpre- statutorily authority da. the ultimate understanding longstanding that official’s Immigration Nationality tations of interpretation that extraschedular evaluation 1103)); (citing Vons Act 8 U.S.C. Cos. limited to an individual assess- was States, (2001) (stating 51 Fed.Cl. United and that official’s current effort ment extraordinarily the "court [should be] change to make clear that the it Trea- attribute to the IRS or the hesitant to authority have the USB and Director do not sury Department interpretations of a revenue grant on a an extraschedular evaluation ruling employees that individual IRS made Although I do not basis. views, than represent personal their rather understanding question Deputy Director’s agency”). equal position of the Of the official note, Secretary certainly although time, might interpreted over have been how regulation, authority change no sub- his Director, USB, opinion it is change place past over has taken stantive counsel, general of a consistent or evidence and, only taking place half-century, now interpretation, that of that should application today’s majority decision. result notably provided, and is absent. been have cant, equally nothing regulation that one section will not de is the and so is the stroy provision another unless the authority grant limits their to an extras- ” obvious mistake or error’ result of only chedular evaluation based on a dis- Singer, 2A N. (quoting SutheRland ability-by-disability basis. As indicated Statutory Construction, (6th § 46:06 ed. above, Secretary if the wanted to limit the 2000))); King see also v. St. Vincent’s Director, authority of the or the he USB 215, 221, Hosp., 502 U.S. can; but, could have done so—and still he that, (holding 116 L.Ed.2d 578 has not.14 or interpreting regulation, when a statute Promulgating History to look at the con required the court whole); provisions of law as a text and Although plain meaning regu- the of the Dania Nursery, Imazio Inc. v. Green latory language binding, is clear and coun- (Fed.Cir.1995) houses, 69 F.3d Secretary sel for the suggests that the (holding parts that all of a statute must regulation’s promulgating history supports together according be construed without authority that the dele- single to a or isolated importance undue gated to the USB and Director is limited Brown, portion); Smith scope. however, To contrary, (Fed.Cir.1994) (the canons of statu promulgating history supports plain tory interpretation apply interpreting to language of the that the USB regulations). delegated and Director have been broad reiterating interpre- It is worth that the authority to award an extraschedular dis- proffered by tation counsel for the recently ability rating disability based on the total Secretary authority of the limits USB picture veteran. Director, each of whom has been dele- Secretary’s supplemental Based on the authority §in gated to render memoranda, has its roots extraschedular evaluation decisions. See rule, Secretary’s a 1930 Rule 1142. Sup- 512(a) (giving Secretary also 38 U.S.C. (Sec. (cit- plemental Supp.) App’x Br. at A authority delegate authority broad to to by Secretary ed as VA Rules and act); Shinseki, 24 Vet.App. Parrish v. 1930)). (May Procedure (2011) (recognizing Secretary’s broad language ambiguous— therein act); authority delegate authority unclear — disability as to whether an extraschedular 3.100(a) (delegating general C.F.R. au- rating predicated multiple- could be on a thority to the to act on with- USB matters basis, simply because the rule jurisdiction in the Benefit Veterans would be based indicates such Administration). sure, To be neither the average earning capaci- on the reduction in required grant USB nor the Director is average worker ty compared to “suf- simply an extraschedular evaluation be- fering disability,” a similar which envisions multiple cause a veteran has disabilities— indeed, single disability multiple either a dis- extraschedular evaluation is for the exceptional or unusual case—but there abilities. Noting Secretary beyond that

14. that the has not limited combined effect associated with authority of the USB or Director is not a each individual are considered for Indeed, suggestion that he should do so. an extraschedular based on the collec- decision, upon today's issuance of Secre- employability on their tive effect tary promptly change position should es- earnings capacity. sacri- Our veterans’s poused his counsel and ensure that veter- grateful Nation. fices demand no less from suffering ans from disabilities and a 1934, however, Rules and Procedure as VA from (Jan. 1936)). § A 1945 rule an extraschedular VA strongly indicate that guidance based on multi- permissible provides general evaluation was also the same Regula- that, Specifically, VA if is deemed inad ple rating disabilities. schedule total dis- primarily tion No. 3 addressed forwarded for an equate, a claim be clearly authorized such ability ratings and reevaluation, although advisory opinion or disability arising on total ratings based guid 1945 rule does not contain the disability multiple or disabili- single from a to what ance stated the 1936 rule as (cited App’x Br. at Supp. ties. Sec. 2d G be included in the forwarded sub should Regulation by Secretary as Veterans (cited Br. at Supp. App’x mission. Sec. C 3(a) and Procedures No. on VA Rules by Secretary Regulation as VA 1307) (“The ... permit[s] ratings § rule (Oct. 1142(A) 19, 1949)[sic]). § per- ... disability total when disabled In an interim was is unable, by ... has been reason of son alia, inter effective provided, sued that body, of mind or to follow impairment evaluation, dates for an extraschedular substantially gainful occupation, provided of the claim or the facts tied to the date are physical that his or mental disabilities Although Secretary’s of the case. by rating agency to be suffi- deemed suggests .supports this briefing ciently produce occupational severe to this that extraschedular consid added)). (emphasis Pertinent incapacity” predicated only single-dis eration is on a hereto, regulation explicitly this same au- basis, il ability suggested support meritorious cases thorized submission of lusive, predicated on a at best. Whether of an extraschedular rat- for consideration multiple claim for one or dis ing qualify when the case did not for a abilities, predicated or on a re disability rating rating under total connected for a cently found to be service Regulation or No. 3. Inasmuch as schedule already veteran service connected for one 3 addressed a total disabili- Regulation No. disabilities, predicated single- on either a or more the effective date of ty rating basis, collective-disability disingenuous it is an extraschedular evaluation is tied to Secretary’s argue for the counsel to open the date of the earliest claim still referral for ex- found, this authorized the facts similar to the effective (that of cases traschedular consideration date for the award of a total qualify disability rating) for a total did not unemployabili on individual based only individual-disability on an basis. 5110(a) (“[T]he (TDIU). § ty 38 U.S.C. ... effective date of an award shall be reflected in the 1936 ver- Revisions VA found, fixed in accordance with the facts Rules and Procedures sion of VA earlier than the date of but shall not be that an extraschedular evalu- also indicate therefor.”). receipt application Other predicated ation could be dis- stated, wise how an effective date is de abilities, certainly contains no limita- light termined sheds no on whether the against rating. Specifically, tion such a authority USB or Director has that, general if the provides the rule evaluation on grant an extraschedular inadequate, schedule was deemed the mat- only basis or a cumula single-disability advisory be for an ter could forwarded note, tive-disability Supp. basis. Sec. 2d Br. at opinion or reevaluation. Of the for- (cited by H App’x VA warded submission was to include a recom- Issue, EM 21-58 every Emergency “evaluation of disabil- Interim mendation and (cited (June 1960)). by Sec. Br. at B ity.” Supp. App’x 3.321(b)(1) codified its ation under if By VA had “38 C.F.R. implemented Regulation VA schedular evaluations are considered to substantially 3.321 similar to inadequate version for an individual disabili ” Here, any ambiguity added), its current form. ty (emphasis briefing and the gone. in the earlier rules is present contends that phrasing reflects an in earlier, Though precluded 1961 it terpretation prohibits became clear that an extraschedular evalu- consideration based on granted ation could be “commensurate M21-1MR, III, multiple disabilities. pt. earning with the average capacity impair- B(5)(c) (cited iv, 6, subpt. ch. by sec. exclusively ment due to the service con- G). Secretary in Sec. Supp. App’x Br. at (em- disabilities,” disability nected Id. However, reading M21-1MR as limiting added). phasis explanation An associated the criteria for extraschedular consider the regulatory changes with made to sev- ation to only those instances where the regulations eral in 1961 notes that most schedular inadequate evaluations are for nonsubstantive, regulatory changes were individual in result would except changes Regulations for the trumping M21-1MR the plainly estab 1321, which were “substantive.” Sec. lished broader criteria in the (cited Supp. by 2d Br. at J App’x subject that is not to being trumped (§ 3.321) Secretary Regulation as VA Shinseki, See M21-1MR. Smith v. (1961)). Although specific substantive (Fed.Cir.2011) (“VA 1380, 647 F.3d detailed, changes were not further the ad- interpretations of its own in dition of “or disabilities” the context of Adjudication its Procedures Manual generally ambiguous past, rules in the ‘controlling’ long they are as [M21-1] changes being in the context of substantive are ‘plainly erroneous or inconsistent ” speaks made volumes. Id. with the regulation.’ (quoting Thun v. (Fed.Cir. Shinseki, 1366, sum, In regulation’s promulgating 2009) Auer, at (quoting 519 U.S. history supports plain language Shinseki, 905))); Castellano v. regulation that the USB and Director have (holding 151-52 delegated authority been broad to award properly promulgated “a an extraschedular rating based an M21-1 trumps provision or other VA on the disability picture total of the veter- plainly directive that is erroneous or in an. See Rumsfeld, Hamdan v. 548 U.S. regulation”). consistent with n. 126 S.Ct. 165 L.Ed.2d (2006) (noting that the Court’s inter- Moreover, although this instructional pretation plain language aof statute manual directs referral for extraschedular supported by legislative history); rating consideration when the schedule is Trustee, 526, 539, Lamie U.S. 540 U.S. disability, inadequate to rate an individual 124 S.Ct. 157 L.Ed.2d 1024 for preclude does not referral extrasche- (noting “history policy consider- dular consideration based on veteran’s support” holding ations lend to Court’s Indeed, preced- collective disabilities. in a statute). regarding plain language of a section, ing rating the manual directs offi- Adjudication VA Procedures Manual possible cials to “consider” entitlement to when, Secretary’s briefing notes that the an extraschedular evaluation inter alia, rating “the Adjudication VA Procedures Manual the evidence indicates (M21-1MR) inadequate compensate states that a claim is to be schedule average earning ca- impairment submitted for extraschedular eonsider- for the (for referral have considered example, might sions pacity due context, con- no officials although employment or such marked interference Secretary recall a for the by counsel hospitalization).” tacted frequent periods 6.B(10)(a) III, iv, rating. More- M21-1MR, granting sec. such subpt. decision pt. i.e., added). officials, over, key There is no indication none of the (emphasis Director, USB, an individual has submit- “disability” Secretary, is limited to if “a regarding scope would be the case disability, which a statement ted of “dis delegated been used instead to have been disability” authority had believed 3.321(b) indication that also is no in its ability.” promulgated There when first a claim not forward officials should also in 1961. The current form consideration based for extraschedular Office of General presented has not is inade that the schedule evidence the view interpretation supporting Counsel disability picture resulting for a quate briefing. in his counsel’s represented multiple disabilities. from Rather, of the Office deputy director in- provisions these two together, Read Policy Management Regulation rating the official must submit dicate that of Affairs sub- Department Veterans extraschedular consideration a claim for he to the effect that mitted a statement inadequate is rating when the schedule authority to delegation that of understands may also sub- disability, but an individual on a extraschedular evaluation award an consider- mit a claim for extraschedular was not the intent multiple-disability basis inad- schedule is ation whenever 3.321(b), working § he on a and is behind the veteran as a compensate to equate to make it clear regulation rewrite “disability,” which can consist of result of a evaluation on that an extraschedular Thus, even if disabilities. basis is not authorized. multiple-disability 3.321(b) the M21-1 ambiguous, § were submitted respect, due the statement With that does not reflect try an effort to and persuasive more is authority under lack the or Director USB (unsuccessfully to regulation change 3.321(b) § award an extraschedular 4) it, clarify date, than to supra see note disability basis. on a combined evaluation and, event, light in any persuasive in is not sum, cannot and the only regulation’s plain language, M21-1MR not In regulation, my a trump plain language throughout dis- other factors discussed regulation with the not even conflict does sent. Castellano, Talley v. Der supra;

here. cf. assuming arguendo Similarly, even winski, (holding excluding practice of there is a “current” that, should be construed just as statutes consideration for veterans constitutionality, to sustain to collective earnings impairment due with with the to harmonize should be construed disabilities, practice a cannot serve such law). where the change

VA Practice spe- are opposite. There plainly states opportunity-to-be- publication cific and an inabili- Secretary’s briefing notes The with modi- associated requirements heard Agency practice a consistent ty to confirm (VA § issue, fying regulation. asserts— U.S.C. which—he regarding rulemaking authority); see also U.S.C. in or authority a lack of the USB reflects 553(b) (c) upon specific (expounding § evalu- to award an extraschedular Director opportunity-to-be-heard publication multiple-disability on a basis. ation modifying associated requirements Board deci- briefing speculates some “disability” modifica- the word regulation). proper Until such not “disabili —and Thun, ties”—was used in undertaken, Vet.App. at regulation plainly tion is briefing suggests 115. The also authorizes extraschedular consideration on Thun’s identification of a three-step analy disability picture arising from all the total determining sis for whether referral for of a veteran’s disabilities. extraschedular consideration is warranted 8.821(b) analysis any A proper indicates that such consideration is limited practice keep perspective also must individual-disability evaluation. These authority delegated the fact that arguments are misplaced; Thun involved a 3.321(b) Director in- to the USB or disability, single and the issue of whether exceptional to be exercised in the tended 3.321(b)(1) potential envisions awards of exceptional case—where there is an un- extraschedular consideration based on cu disability picture gen- usual such that the before, mulative disabilities that was not inadequate to com- eral schedule by, addressed the Court in Thun. pensate average earning capacity for the Moreover, although counsel for the Sec impairment due to the or disabil- retary majority and the are correct that Accordingly, ities. the lack of a current explicitly adopted the Court has never practice awarding or recollection of extras- expressed by Judge Steinberg view in his chedular consideration for collective dis- separate Brambley statement v. Prin might abilities be a result of the fact that cipi, Vet.App. (noting that exceptional cases are definition rare. envisions extraschedular con Thus, in the context of extraschedular sideration on a cumulative-disabilities ba exceptional sis), evaluation intended for the expressed has never dis case, Indeed, in practice actually unusual agreement with either. evaluation, majority Brambley expressed an in no dis awarding extraschedular view, be, agreement Judge Steinberg’s might very helpful whatever it is not in and, fact, 3.321(b) in that an noted extrasehedular- scope to determine the of trying adjudica like adjudication, evaluation an authority whether it includes for the TDIU, pic “require[s] complete tion for a grant or Director to an extraschedu- USB service-connected appellant’s ture rating suffering lar to a veteran from mul- employ- and their effect on his disabilities tiple might individually that be disabilities Also, Vet.App. at 26. in ability.” by general adequately contemplated Shinseki, 24 Vazquez-Flores Vet.App. schedule, result in a collectively but (2010), of in the context not find to disability picture adequately that fails error as to denial of referral ing Board average earning capac- for the compensate an in for extraschedular consideration for due to those disabilities. ity impairment disability, dividual remanded Court Accordingly, Secretary’s contention that matter because the Board had erred briefing Secretary’s in that the counsel his denying service connection for another practice grant authority reflects a stated, disability. Although explicitly 3.321(b) solely limited to individual-dis- Vazquez-Flores taken in indi the action ability persuasive. consideration is not that, understanding an if the second cates Sanction Judicial granted were service connection Secretary’s briefing argues that The also remand, on consideration of an extrasche- practice this Court has sanctioned might dular evaluation be warranted referring Board cases for extraschedular disabilities, remand on based on both only earnings consideration based im- was warranted so the issue also it as single disability, to a because Board could address needed. pairment due occupa- with a focus on picture, case- explicit of the lack of Regardless difficulties, although an award of tional issue, when a it is clear that law on the higher degree occupa- TDIU involves for an extras- requests referral claimant difficulty (“unemployability”). Id. tional evaluation, or the record evidence chedular entitlement to reasonably possible raises Accordingly, there should be no concern referral, required to the Board is such officials, Board, USB, or whether referral for an extrasche- address complete of whom assess the Director —all is warranted on both dular evaluation evaluating when TDIU— picture basis, collective-disability ability individual- and to assess whether a disabil- lack the referred, and, from collective disabili- provide ity picture arising if not the reasons reflected exceptional or unusual as decision. ties is bases for the non-referral inter- governing norm of a marked Inability Implement to hospi- employment frequent ference on Secretary’s briefing also asserts an The talization, that the schedule does not such eval- inability implement to the veteran. To the ex- justice accord multiple-disabili- on a uation consideration needed, every tent I have confidence basis, argument perplexing. but this ty and Board Chairman could possi- Secretary routinely adjudicates necessary training to accom- provide the TDIU, predi- whether ble entitlement plish the task. or collective-disabil- cated on an individual- sum, although implementation impos In why he ity There is no reason basis. sibility rejecting can be a basis for evaluation. cannot do so for extraschedular Secretary’s plain-language reading of the imple this is not a case where regulation, Indeed, the has noted the similari- impossible mentation is or so difficult as fact in the two evaluations and the ties Vermiglio See effectively impossible. complete on a predicated that both are Plan, Inc., Group Health No. of a veteran’s service-connected picture 4:07ev0282TCM, 2008 WL at *7 employment. disabilities and their effect on (E.D.Mo.2008) imple (“[A]ny difficulty at 24. Brambley, See Com- menting confer [does not] (2012) (TDIU predi- § 4.16 pare 38 C.F.R. meaning plain different than the one made a inability on “to secure or follow cated language regulation.”); Ab by substantially gainful occupation”), Revenue, del-Fattah v. Internal Comm’r (extraschedular’ au- § 3.321 consideration (2010) 190, 209, 2010 WL 1687673 T.C. when there is “marked interfer- thorized (“If ... Congress rule that enacted is employment” gen- ence with such that the implement], difficult to problematic [or compensate eral schedule does not by not problems then the can be addressed “average earning capacity impair- by only legis corrective but ment”). Moreover, although the two are amendment.”). lative cases, a inextricably not intertwined all Challenging Final Decisions and adju- development remand for further Conflating Extraschedular remand on dication of TDIU can warrant Consideration TDIU rating.15 the issue of an extraschedular Secretary’s briefing expressed is because both The also Brambley, supra. See This narrow view of the rejecting concern that complete predicated are on the veteran’s Brown, contrast, Kellar v. development and warrant remand for TDIU. 15. In remand for (1994). adjudication possible entitlement to an ex- Vet.App. of generally not traschedular evaluation does 3.321(b) CUE), might §in re cannot authority delegated constitute and an award (1) challenges to final sult numerous reopened based on a claimed has an effec- that have denied referral for an decisions tive date tied to the date of the claim to 3.321(b) extraschedular evaluation under 5110(a); reopen, 38 U.S.C. 38 C.F.R. misreading based on a § 3.400 Accordingly, the Secre- (2) extraschedular consideration under tary’s concern that there would be numer- 3.321(b)(1) being conflated with TDIU challenges ous successful to final decisions contention, § 4.16. As to under the first hand, On the unfounded. other should are fi unappealed generally VA decisions high standard CUE be met or new (1) reopened by nal unless a claim is submitted, and material evidence setting submission of new and material evidence finality reopening aside or the claim would there is clear and er unmistakable indeed, be consistent in full compli- with— (CUE) decision, ror in the which is demon direction, and, ance congressional with— by showing strated a claimant’s an unde- context, justice envisioned error, batable the correction of which would be accorded. manifestly change would the outcome. Secretary’s The second contention—that See, Nicholson, e.g., v. 20 Vet. DiCarlo delegation authority to the USB App. (noting judicata that res grant Director to an extraschedular only that there be “requires one valid deci on a multiple-disability essentially basis any excep sion on issue or claim” and that conflates extraschedular consideration with finality tions to the rule of include a motion herring. TDIU —is a red CUE, for revision on the basis Board reconsideration, and caselaw are clear that and ex- obvi TDIU Board correction of traschedular evaluation consideration have sponte, reopening ous errors sua claim evi separate based new and material criteria. Extraschedular consid dence); Principi, Russell v. available eration is when a veteran’s ser (1992) (en banc) (“[c]lear 310, 313 and un have, alia, vice-connected disabilities inter error ... mistakable must be the sort of a marked interference with employment which, made, error had not been would such that the schedular ratings are manifestly changed have at outcome adequate, and TDIU is available when the (internal the time it was quotation made.” (i.e., essentially unemployable veteran omitted)). marks substantially “unable to secure or follow a gainful occupation”) a result his ser Moreover, failures, duty-to-assist includ Kellar, vice-connected disabilities. See claim, ing properly develop the failure to 162; Brown, Vet.App. at Stanton Vet. CUE, Szemraj do not constitute see (1993) (issue App. 564-70 of extras- (Fed.Cir. Principi, 1375-76 2004) (failure separate chedular evaluation is from issue developing to assist in evi- 3.321(b), §§ CUE); rating); 38 dentiary TDIU C.F.R. record cannot constitute 4.16; 4.1, (2012), §§ Principi, Cook v. 1341 see also 38 C.F.R. 4.2 (Fed.Cir.2002) (breach (2012).16 duty to assist 4.10 course, TDIU, obtaining 16. Of there in the cri which refers or re are similarities than benefit, teria for each that the record taining general); Brambley, such employment in will, might, frequently evidence in a case supra; see also VAGen. Coun. Prec. 6-1996 Thun, require discussion of both. See 22 Vet. 16, 1996) (Aug. (recognizing possibility App. (noting at 117 that marked interference may require a discussion that circumstances employment required with as for extraschedu- and enti- of both extraschedular consideration lar consideration is a lesser to meet standard ERRONEOUS II. SECOND to the Present Case

Application CONCLUSION service-con Mr. Johnson error in the fact majority The find disabilities, rheumatic including nected whether the did not “discuss the Board disorder, right-knee heart disease and regarding criteria instabili rating schedule for ex- referral for which he was denied extension limitation of flexion or ty and on an individu traschedular consideration right Mr. Johnson’s reasonably describe claim remanded a The Board al basis. Compare disability.” Ante at 246. knee disability compensation for an increase Thun, (discussing three Vet.App. at 115 treatment rec left knee because for his an ex- analyzing if referral for steps for left knee addressing Mr. Johnson’s ords warrant disability rating is traschedular by the considered previously were not Shinseki, ed), 22 Vet. Anderson v. with RO, Board also remanded and the (2009) that, al (clarifying App. a collective of TDIU on issue three in Thun identified though the Court context, because 38 In that basis. necessary they can be treated as “steps,” 3.321(b) provides for extrasche- C.F.R. rating). an extraschedular “elements” for collective, as well dular consideration on a majority preju also find no Although the basis, individual, disability error, the Board I arising purported from this dice for further ad there is no also should have remanded the matter to note that raise an that the Board address legal requirement the issue of entitlement judication one—of the one—or element step evaluation on a collective Thun/ analysis provide in order to Anderson 7104(d)(1); disability basis. 38 U.S.C. or bases for statutorily required reasons Brown, 517, 527 Allday Vet.App. v. legal requirements its decision. (Board’s (1995) “must be ade statement statement are that regard to the Board’s to understand quate to enable a claimant (1) the material issues the Board address decision, the Board’s precise basis for reasonably appellant raised to facilitate review as well as evidence, Peake, by the Robinson v. raised Derwinski, Court”); v. 1 Vet. Schafrath (2) (2008), explain its Vet.App. (1991) (Board must consider and App. 589 evidence, materially favorable rejection of of law applicable provisions discuss all Gober, Thompson Vet.App. they “po where are made (2000), potentially applicable discuss tentially applicable through the assertions laws, otherwise Schafrath, supra, and record”). raised in the and issues for its decision that provide explanation judi error warrants either modi- facilitative of The Board’s is understandable and review, To hold other Allday, supra, reflect a cial fication of the Board’s decision to substance, can form over puts wise RO to consider referral for remand for the reputation “hamster wheel exacerbate the multiple- evaluation on a an extraschedular Shinseki, of veterans law.” Massie basis, the matter or a remand of 123, 128 modify that the Board can its decision so for the RO to consider to reflect a remand Thun, an ex- referral for Pursuant evaluation referral for an extraschedular disability rating is not war traschedular multiple-disability basis. 38 U.S.C. contemplates ranted if the schedule (Court can, alia, modify disability picture, Board which § 7252 inter the veteran’s decisions). 22 step Vet.App. refers to as one. Thun Derwinski, 289, (1992)). TDIU) (citing Moyer 2 293

dement to

265 However, is not on a multiple-disability part referral also basis. That at 115-16. disability pic if the veteran’s the Board decision otherwise on appeal warranted I unusual, exceptional or with the ture is would affirm. whether there is a being norm

governing DAVIS, BARTLEY, Judge, with whom or employment marked interference with joins, Judge, dissenting: which Thun re frequent hospitalization, Id.; two. see also step fers to as agree very thorough While we with the Anderson, (noting that the supra steps colleague, and well-reasoned dissent of our are, fact, elements); in 38 C.F.R. in Judge, analysis the Chief his of 38 3.321(b). Thus, although majority the 3.321(b), separately C.F.R. we write to to find error because the Board purport emphasize grounded that our dissent is one, step their as did not discuss Thun’s language conviction that overstated, sertion of error is as evidenced 3.321(b) unambiguously the in- refutes no by they subsequently prej the fact find terpretation Secretary. advanced because Mr. Johnson did not demon udice By employing plural of the noun “dis- analysis strate that the Board’s of Thun’s ability,” plain unambiguous mean- step finding two was error —a ma ing of this allows certain VA if jority legal could not make there was officials, in cases” when the “exceptional necessary to or otherwise reason mandate inadequate, schedule is otherwise of Thun one before render step discussion impairment earning capacity assess the a decision on whether referral for ex- ing due to the collective effect of ser- multiple traschedular consideration is warranted. The regulation vice-connected disabilities. Principi, See Sanchez-Benitez v. F.3d indicates that in the extraschedular as- (Fed.Cir.2001) 1356, 1363 that “it (noting is sessment, necessary it is consider not the role of the Veterans Court” to find aggregate effect of service-connected dis- “ex “on its own” that a was not “disability picture.” abilities —the ceptional unusual” under 38 C.F.R. regulation’s “disability picture” use of 3.321(b)(1)). critical because disabilities collectively earning capacity affect when sum, In of rea- Board’s statement individually may each considered denying sons or bases for referral for ex- not. traschedular consideration on individual heart disability basis for rheumatic disease unambiguous The clear directive of the right-knee disability fully under- regulatory language given must be effect. review, judicial standable and facilitative of Interior, Lengerich Dep’t comports legal requirements. with all (Fed.Cir.2006) (citing Bowles v. Allday, supra,

See Co., Seminole Rock & Sand 325 U.S.

414-15, 89 L.Ed. S.Ct. III. CONCLUSION (focusing “plain on the words of meaning I Accordingly, modify regulation” would the Board ascertain West, Vet.App. regulation)); decision to reflect a remand for the RO to Trilles v. (2000) (where conveys language consider referral for an extraschedular basis, plain meaning give must effect multiple-disability evaluation on a meaning); to that see also Perrin v. Unit set aside Board decision remand States, 37, 42, modify for the Board to its decision to ed U.S. (1979) (interpretation guided

reflect a remand for the RO to consider L.Ed.2d words); by ordinary meaning evaluation common referral an extraschedular 266 States, collectively evaluate service-con- 405 that VA Corp. United

Tesoro Haw. (Fed.Cir.2005) determine whether (construing nected disabilities to 1389, 1346 F.3d inability earn by “ascertaining they result in the to together like a statute regulation (2012) Moreover, §§ Secre 38 4.16 meaning”). living wage. C.F.R. plain its regulation own ratings of his tary’s interpretation total based (providing when, in this (TDIU)). 2005, to deference ap- is not entitled In unemployability case, meaning plain with the 220,000 it conflicts receiv- veterans were proximately regulation. See Chris benefits, and words of which ing the award TDIU 588, 576, Cnty., 529 U.S. v. Harris GAO, tensen VA required collective evaluation. (2000) 1655, L.Ed.2d 621 120 146 S.Ct. Improve MaNagement Indi- Its of Should agency interpreta (granting deference by Unemployability Benefits vidual unambiguous plainly tion contradicted AND CRITERIA, GUIDANCE, STRENGTHENING permit “to language would be regulatory 2006). (GAO-06-309, 2, 41 PROCEDURES guise interpreting under the agency, illustrates that the VA dis- This number de a new to create regulation, facto process frequently re- ability evaluation Nicklos Cowart v. regulation”); Estate of that it evaluate disabilities quires 469, 476, Co., Drilling U.S. clearly beyond the collectively in a manner (1992) 2589, (affording no 120 L.Ed.2d 379 disability percentages fixed application of agency interpretation when deference to and tables for for individual disabilities text); Smith v. unambiguous with conflict combining percentages. Evaluating those (Fed.Cir.1994) Brown, F.3d the cumulative effect of several service- statutory interpreta the rules of (applying together is therefore connected disabilities Brown, regulations); DeLuca tion raters way ability in no outside the VA (1995) (holding that VA “disability-by-disability interpreta- and a conflicting 3.321(b)” is no more “consistent tion of to defer meaning not entitled plain scheme,” statutory regulatory with the ence). approach cumulative ante at than the language un- only regulatory Not is the rating procedures that is also extant in VA majority’s fault the asser- ambiguous, we via TDIU consideration. Secretary’s “disability-by-dis- tion that the regulation further history The 3.321(b)” § is more ability interpretation “to clarifies that revised its VA statutory regula- with the “consistent “exceptional in the case” justice” accord scheme,” 244. See Smith v. tory ante at unusual presents “exceptional States, 508 U.S. 113 S.Ct. United allow certain VA disability picture,” and (language 124 L.Ed.2d 138 an extraschedular eval- approve officials context). from interpreted apart cannot disability or uation for “a disabilities.” principle evaluating for The foundation 3.321(b)(1) (2012); Rat- General C.F.R. the aver- compensate is to disabilities Cases, Considerations, ing Exceptional of service-connected disabilities age effect (Feb. 1961) (codi- 1561, 1583 Fed.Reg. living. to earn a See 38 ability on the adding lan- fying Regulation 1321 and § 4.1 schedule C.F.R. rating could guage that an extraschedular disabilities, addresses individual the service-connected be awarded based on pro- table it through a combined disabilities”) “disability (subsequently multiple disability combining vides for 3.321(b)). at 38 codified C.F.R. (com- 4.25 evaluations. C.F.R. sum, language of unambiguous In ratings). Significantly, bining disability that when the rat- regulation provides requires in addition process the evaluation inadequate to evaluate a ing schedule is disability or mul- service-connected

single disabilities, certain

tiple service-connected approve are authorized to

VA officials

extraschedular evaluation that considers complete disability picture.

the veteran’s assessing

Such an evaluation involve exceptional impact or unusual of each individually,

service-connected

but, according regulation, may to the involve the collective in- considering

also dis-

teraction of service-connected respectfully

abilities. We therefore dis- majority’s

sent from the affirmance of

Secretary’s interpretation, restrictive contrary

which is to the clear and unam-

biguous regulatory language. TRAFTER, Appellant,

Robert L. SHINSEKI, Secretary K.

Eric Affairs, Appellee.

Veterans

No. 10-3605. Appeals

United States

for Veterans Claims.

Argued Jan. 2013. April

Decided 2013.

Case Details

Case Name: Marvin O. Johnson v. Eric K. Shinseki

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Mar 27, 2013

Citation: 26 Vet. App. 237

Docket Number: 10-1785

Court Abbreviation: Vet. App.