*1 that conclusion. See Duenas v. Principi,
IV. CONCLUSION
Upon consideration of the foregoing
analysis, the record on appeal, and the
parties’ pleadings, the December
Board decision is VACATED and the mat-
ter is REMANDED for readjudication
consistent with this decision. ANDERSON, A. Appellant,
Robert SHINSEKI,
Eric K. Secretary of Affairs, Appellee.
Veterans
No. 06-2240.
United States Court of Appeals
for Veterans Claims.
Argued Aug. 2008.
Decided March *2 during that reported DRO The Richmond, 128-31. Virginia, Wesehe Todd M. dis- Anderson and Mr. he conference of Charlottes- Krasnegor, Daniel G. and of an extraschedu- applicability appellant. cussed the ville, Virginia, to 38 pursuant Schneider, R. Randall Robert claim. Mr. Counsel, and General Assistant Campbell, a state- provide agreed Anderson Mr. Gen- Assistant Deputy Mayerick, Richard caused hearing loss detailing how his ment D.C., for Counsel, Washington, all eral interference marked the appellee. Central to the “VA submitted would be HAGEL GREENE, Judge, Chief Before R. evaluation.” for extraschedular Office SCHOELEN, Judges. and letter, Mr. July 2004 In a at 228. that his believed that he stated Anderson GREENE, Judge: Chief from his to retire caused him 2008, deci- 30, single-judge April In an than less company with telephone job at a 4, 2006, April an affirmed Court sion the hearing 1977, that his and pension full Appeals of Veterans’ of the Board a real work as his adversely affected loss A. (Board) veteran Robert denied R. at 236- to 1984. from 1978 agent estate rating higher that a Anderson he in 1984 stated He further 38. rating, 10%, including an Security benefits for Social applied bilateral for his VA 1997, as a he worked until from that time 2008, 21, Mr. May On loss. hearing Septem- 238. R. at manager. property counsel, timely filed, a through re- was claim Mr. Anderson’s ber or, in the alter- motion for reconsideration Compensation the Director ferred to grant- The native, decision. panel a (C P) for consider- & Service and Pension panel for a de- motion ed Mr. Anderson’s rating. an extraschedular ation of argument heard oral cision decision is April The matter. is is- opinion and this
hereby withdrawn P,& Director In March Board did Because the place. sued in file, claims reviewing Mr. Anderson’s after the relevant fully consider histo- complaints, and work his medical thus, record, provide failed to that discussed a letter decision ry, issued of reasons bases statement extras- entitlement Mr. Anderson’s determination, 2006 deci- April for its evaluation chedular matter re- and the sion vacated will letter, the In the R. at 249. readjudication. manded related many years for Anderson had “worked I. BACKGROUND “his hear- company,” and that telephone Army U.S. Mr. Anderson served career.” impact on his great ing loss had 1946, and from May 1944 to October P& Director of C Specifically, Id. (R.) 1952. Record April 1950 to November hearing Mr. Anderson’s noted that 2002, a VA re- In November at 16-17. him from advancement “prevented had (RO) him service awarded office gional he had point his career shortened loss with a for bilateral connection Di- The 51.” Id. age at retire in 28-34, 123-24. rating. R. at 10% that, despite reported & P also rector of C rat- 10% disagreed with the Mr. Anderson aids, his new met with 2004 he and in June ing assigned, in conversations (DRO). participate R. “unable officer VA decision Mends, with his cannot answer or use the II. LAW AND ANALYSIS unless phone helps his wife him out on the Veterans with disabilities resulting from line, other and is unable to understand the personal injury sustained or con disease dialogue of speakers, newscasters and ac- *3 tracted during active service and in the tors radio, whether it is on television, duty line of are entitled to service-connect church, or theater.” Id. Ultimately, the ed benefits. See 1110. Once Director of C & P concluded: a disability has been found to be service connected, applies VA the criteria estab [A]n extra schedular evaluation is as- (DCs) lished diagnostic codes contained signed where normal schedular evalua- VA schedule to assign a tions are found to be inadequate to disability rating. 3.321(a) See 38 C.F.R. compensate for impairment of earning (2008). degrees The of disability for bilat capacity. The veteran has not worked eral service-connected hearing loss are re in over years. As available medical flected in eleven auditory acuity levels in records show the veteran’s the rating schedule. 4.85, See 38 C.F.R. is not so as to severe interfere with his (2008). DCs 6100-6110 Disability ratings ability to gainfully be employed, this for hearing loss are derived from the me Service finds entitlement to an ex- process chanical of applying tra-schedular evaluation is not warrant- schedule to the specific numeric scores ed. assigned by audiology testing. Lenden Id. The matter was then returned to the mann v. Principi, 3 Vet.App. RO and March 2005 the RO determined the rating schedule for evaluating Generally, evaluating a disability using to assess Mr. either the corresponding or analogous DCs Anderson’s disability and that the evidence contained in the rating schedule is suffi- did not show that his disability interfered cient. See 38 4.20 and 4.27 with his to be gainfully employed. (2008). For exceptional cases, VA has au- R. at 271-73. Mr. appealed to thorized assignment of extraschedular arguing that his hearing loss ratings the following guid- forced him job to leave his in 1977 and ance for awarding ratings: such disagreeing with the agency finding that justice, therefore, accord to the ex- loss did not interfere with his ceptional case where the schedular eval- employment. uations are found to inadequate, April 2006, the Board affirmed the Secretary Under for Benefits or the Di- RO determination awarding a disability rector, P],& upon [C field station sub- rating of 10%. 1-15. mission, The Board approve authorized to on the discussed the March 2005 letter from the basis of the criteria set forth Director of C & P and the March 2005 RO paragraph extra[] evalua- schedular denying entitlement to an extras- tion average commensurate chedular rating. The Board found that earning capacity impairment exclu- due “there is no showing that the veteran’s to the sively hearing loss has caused marked interfer- or disabilities. The norm in governing employment (ie., ence with beyond that exceptional these cases is: A finding contemplated in the assigned 10[%] rat- the case presents excep- such an ing).” R. at 12 (emphasis original). tional unusual picture with appeal This followed. such related factors as interfer- marked v. Caluza claimant. vorable peri- frequent ence (1995), per im- render as to af'd hospitalization ods (Fed. 604, 1996 curiam, WL F.3d regular application practical Brown, 7 Cir.1996) (table); Gabrielson standards. schedular Gilbert, supra. (1994); 36, 39-40 re the Court As “determination explained cently argues to an is entitled claimant of whether overturning exceeded 3.321(b) is to his favorable that were findings DRO Peake, 22 Thun inquiry.” three-step argues Alternatively, he claim. *4 (2008). the RO or If 111, 115
Vet.App. for or bases of reasons statement (1) schedular the that Board determines ex- deny him an decision the Board’s the claim contemplate not does evaluation inadequate because rating is traschedular symptomatolo- disability and ant’s level ser- his ignored evidence the Board (2) exhibits disability picture the gy, him prevented loss vice-connected inter as marked such factors other related aat career preferred advancing his peri frequent or employment with ference quit him to caused company and telephone (3) the case then hospitalization, ods jobs. several official authorized to an referred must be Board the appeal, In the justice, an whether, to accord to determine an extras- matter of that the acknowledged Id. warranted. rating is bilater- Anderson’s rating for Mr. chedular permitted nor the the RO Neither submitted initially had been al an extraschedular assign P for extraschedu- of C & ini must instance; the matter rather first consideration, that Mr. determined who lar who those officials tially referred not warrant disability did Anderson’s assign authority to delegated possess the evaluation. Brown, Floyd rating. such Di- review, agreed with the Board its (1996). 88, 95 found: specifically P& and rector adjudicated matters all As with [Mr. showing no concerning [TJhere Board, a Board decision caused hearing loss has Anderson’s] a writ rating must include marked interference for or bases reasons ten statement contemplated (i.e., beyond all material findings and conclusions its required rating) has assigned 10[%] on the presented law of fact and issues less, frequent hospitaliza- any must be record; that statement — —much factors, or of such In the absence tions. to understand a claimant to enable this demonstrating that decision, factors other as the Board’s for precise basis unusual exceptional or [an] case involves in this informed review to facilitate well as imprac- so as to render disability picture 7104(d)(1); Allday Court. See schedu- regular (1995); application ticable Gil standards, criteria Derwinski, bert v. of an assignment requirement, comply To have simply evaluation credibility and analyze the must [Mr. the extent met.... evidence, been account value of
probative functional experience may Anderson] persuasive it finds evidence that his service [^connect- due to impairment reasons provide the unpersuasive, loss, Board finds ed fa- any material rejection its impairment such is contemplated in the erred in determining that the threshold rating assigned 10[%] to this disability. requirements for referral for extraschedu- lar consideration had not been met. R. at 12. Al though the Court discussed process A. Scope of Board’s Review of determining whether a referral was appro Extraschedular Rating priate terms of “steps,” the Court did Denial not hold that initial findings with respect argument those steps were final and binding on exceeded P, Director of based on C & RO, or the his belief that the DRO’s Board. referral Anderson misinterprets the claim to the three-step Director of inquiry C & evinces two announced in Thun by implicit findings: favorable attempting The sche- to elevate step each into a final dular rating for his and binding bilateral hearing agency decision. See 22 Vet. (“determination was inadequate, 3.821(b)(1) App. of whether a related factors for an claimant is extraschedular rat- entitled to an extraschedular ing were present 3.321(b) established in his dis- is a three-step in *5 ability picture. quiry”). He asserts that there is no the extent that the use of the entity in YA that has term “steps” the authority to as it is used Thun is revisit implicit those misleading favorable findings and and led to Mr. Anderson’s in that, once those findings terpretation, made, have been we clarify are, that the steps the fact, Director of C P& must elements award the that must be established benefit of an extraschedular before an rating.1 Mr. extraschedular can be Anderson asserts it is awarded the and that they unfavorable by reviewable findings in the Director of the letter, C & Board. P’s concluding that an extraschedular rating is Second, although the precluded Board is warranted, has appealed he to the from initially assigning an extraschedular Board. Accordingly, he argues that the rating, there is no restriction on the analysis Board’s of the factors presented ability Board’s to review the denial in the DRO’s decision to submit his claim extraschedular rating on appeal. See 8.321(b)(1) §
for
extraschedular consider-
Floyd,
We do not agree that review, the Board appellant may “continue[] jurisdiction. exceeded First, the Court peal the extraschedular aspect *6 DRO, See by the these matters. Third, findings made on advisory opinion referring Mr. 3.321(c) (“Cases in which the act § implied 38 C.F.R. con- for understood claim is not schedule of the plication Anderson’s binding otherwise, on not are extra[ ]schedular of an propriety sideration or the turn, and, of & Director C may be submitted questionable is rating As appeal. on Board binding on the advisory opin for Office Central [the] on Thun above, relying explained is Indeed, a case sub ion.”). when even mis- contention, Mr. support his consideration mitted for extraschedular for ex- inquiry three-step interprets 3.321(b)(1), analysis per mistakenly consideration traschedular is done RO or by the formed a final step into each attempts to elevate determining wheth purpose the limited at decision. See binding for extraschedu- the matter er referral claimant (“determination of whether See warranted. is consideration rating un- to an extraschedular is entitled of the review The actual Floyd, supra. 3.321(b) three-step inquiry”). is a der of an approval matter P who author- & of C the Director It is first time for the is done rating rating an extraschedular approve ized C.F.R. P. & of C in 38 set forth criteria the basis Thun, Vet.App. at 3.321(b)(1); see 3.321(b)(1). that not allow 115; Floyd, reject affirm to either individual claim was case, Mr. Anderson’s In this of the claim submission bases P,& who the Director referred consideration, an extraschedular determined then colleague concurring and our rec- because warranted was not regulatory the specific overlooks suggest, not establish ord P “to did the Director authority of sowas as to severe interfere ate after finding that the impair functional his to be employed. The RO ments of Mr. Anderson’s bilateral hearing then effected that finding by issuing a loss were contemplated by his schedular rating decision denying entitlement to an 10% disability rating. R. at 10-11. Mr. extraschedular evaluation based on the let Anderson argues that this finding amounts ter from the Director of &C P. The ato denial Board’s of the RO’s decision that the basis that his disability picture does Mr. Anderson is not entitled to a hearing not meet the initial threshold for establish loss rating greater than 10% included ing that an extraschedular rating is war review of whether an extraschedular rat ranted. See Vet.App. at 118 ing was warranted. Barringer (“[I]n regarding cases whether extrasche Peake, dular referral warranted, the threshold (“The question anof extraschedular rating determination is whether the disability pic component is a aof claim for an increased presented ture in the record adequately rating.”) (citing Bagwell, 9 Vet.App. at contemplated by schedule.”). the rating 339). In exercising its appellate authority, the Board then determined there was Although, as above, mentioned pro- no error in the finding below that an ex- priety of the decision on all elements lead- traschedular evaluation was not warranted ing to an extraschedular rating is within because failed show purview, here the Board’s schedule was inadequate or that analysis lacked an articulation of the actual there was marked interference with em symptoms and functional impairments al- ployment. R. at 12. Accordingly, leged by Mr. Anderson. See R. at 1-13. Court holds that the did not exceed The Board noted that Mr. Anderson had when it determined that not worked in over years at the tele- Mr. Anderson was not entitled to an ex- phone company but the Board failed to traschedular evaluation for his bilateral discuss his statements throughout the rec- disability. See 22 Vet.App. asserting ord loss resulted *7 difficulty communicating with oth- B. Adjudication Board’s ers work and social conversations, in- of Extraschedular cluding employment as a real estate Evaluation agent 1984, 1978 to from in property and maintenance from Anderson 1984 to 1997. further argues that 236-38, see R. extent it appropriate 290-91. Because the Board to description the Board’s review factors of Mr. concerning Anderson’s dis- whether an ability picture extraschedular rating presented by was war the record is ranted, the Board provide incomplete, failed to analysis an its of whether adequate of statement reasons or disability picture bases for adequately contemplat- its determination. The Board found ed the rating schedule is necessarily an rating was not appropri- flawed.2 See Accordingly, 2. Mr. Anderson's statements that his level of symptomatology and for 38 loss caused hypothetical a loss C.F.R. Vet.App. 3.321. 22 Cf. opportunities advancement (loss and n. 3 of income is not relevant to thresh- inability preferred work in his career old adequacy determination of of schedular (see 6-7) Appellant’s field Brief Moreover, at have rating). little to the extent that Mr. relevance to the inquiry threshold argues into the that he is entitled to an adequacy schedule his actual because his
430 concurring: SCHOELEN, Judge, that Mr. decision the Board’s war does majority’s condition ulti Although I concur is not evaluation dissent respectfully I holding, rant an mate statement the adequate discusses the decision part supported the of C & the Court’s the facilitate roles of respective or bases reasons meriting See extraschedu- appropriate. in cases the RO and and remand review adopted majority The also Gilbert, supra; see lar consideration. both Allday and argument at oral 369, Secretary’s position 374 West, 11 v. Tucker is authorized & P inter Director of when (remand appropriate the Board or RO whether statement alia, provide fails case appellant’s referred propriately 9 Vet. Floyd, bases); also see or reasons effect, consideration-in for extraschedular proceed does (“If 96-97 App. 1 steps and by Thun required analysis regulatory correct with the compliance 111, Peake, 22 v. Thun See contin then appellant and procedures Secre that the (2008). I believe appeal ues to P di the C interpretation tary’s will be claim, this aspect inconsis respect is this province rector’s of fact findings to articulate required (2008), with 38 tent thereupon or bases reasons and sufficient little, any, if is entitled therefore and is consideration the extraschedular Robbins, 519 U.S. v. Auer See deference. may remand, sue.”). On 905, 137 L.Ed.2d 461, S.Ct. 452, argu any additional present inter agency’s (1997) (confirming that an remanded, matter support ment in “con regulations of its own pretations any evidence consider must and the incon erroneous ‘plainly trolling unless v. Kay presented. so argument ”) (quoting regulation’ sistent 529, Principi, Citizens Valley v. Methow Robertson 1835, 359, 109 S.Ct. Council, 490 U.S. CONCLUSION III. George (1989)); Bowen L.Ed.2d 488 U.S. Hosp., town Univ. foregoing consideration Upon (declin 468, 102 L.Ed.2d S.Ct. appeal, record analysis, positions litigating to “agency defer ing to April pleadings, parties’ by regula unsupported wholly the mat- is VACATED practice”). tions, rulings, administrative readjudication. ter is REMANDED Floyd noted As *8 increased involving an determination “the GREENE, Judge, filed Chief extra[ rating on disability Jschedular of the Court. opinion require procedural subject is basis 3.321(b)(1).” § in 38 C.F.R. out laid concurring ments a SCHOELEN, Judge, filed (1996). To begin, 95 9 Floyd, opinion. (evaluations regarding (1994) Vet.App. 157 argu that is unemployability, in resulted § 4.16 interference in disability employability rating total of relating ato ment 3.321(b)(1) are (TDIU), § in unemployability employment contained based on individual Brown, metrics); at this 5 Vet. Court Stanton not that is before different matter 4.16(b) (2008) 4.15, (issue §§ extrasche- of C.F.R. See 38 App. time. by reason unemployable (all are TDIU who veterans issue rating separate from is dular disability be rated shall of service-connected rating). disabled); 6 Kellar see also totally Instead, inadequate. upon submission must determine that RO or Board of & P ... inade the RO or the Director C is evaluations “schedular 3.321(b)(1); § see ... only “approve authorized an ex quate.” (holding that Vet.App. at 95 Floyd, 9 evaluation commensurate ]schedular tra[ 3.321(b)(1) the Board to “consid § allows earning capacity impair average with the whether appropriate exclusively er[] to the service-con ment due referral (emphasis required”) officials is 3.321(b)(1). first-line § disability.” nected 38 C.F.R. added). omitted) As the Court (emphasis Floyd explained, As the “38 C.F.R. in such determination explained § acts as a funnel to channel two-step inqui or RO involves a rating for an requests extra[ ]schedular First, Vet.App at 115-116. ry. possess officials who through certain compare Board must “the the RO or the delegated authority assign such a rat severity symptomatology of level of ing.” Floyd, Vet.App. at 95. disability the claimant’s delegation authority appropri Such in criteria found with the established ate, Di given respective roles of the disability.” Id. at rating schedule for that rector of & P and the RO and the Board C Second, “if the schedular evaluation adjudicating claims for VA benefits. contemplate the claimant’s level does Director of & P has Specifically, the C symptomatology and is authority to draft the delegated been or Board must inadequate, found the RO schedule, practica “as as based far excep whether the claimant’s determine ble, upon average impairments earn exhibits other re picture tional resulting injuries from such ing capacity by the lated factors such as those ” see occupations.” civil regulation ‘governing norms.’ Id. at 501(a); 38 C.F.R. also 38 U.S.C. 115-16; Floyd, Vet.App. at 97 accord 2.6(b)(1), The Director of (“As 3.100 written, provides 3.321 (‘an expertise determining & P’s C exceptional or unusual dis criterion impairment due average earning capacity ability picture with such related factors as service-connected dis exclusively marked interference hospitalization as to This frequent periods ability. See 38 C.F.R. impractical application uniquely of & P render makes the Director C standards’) for deter regular schedular determining what extraschedular suited to mining whether consider extra[ ]sehedular On the other rating level is warranted. warranted.”) added). (emphasis ation hand, exper the Board have the RO and respective the facts of each applying tise the schedular evaluations are “Where Moore v. case to the schedule. See inadequate,” the RO or Board found Nicholson, to the Director must then submit the case job it is the (holding 3.321(b)(1); Floyd, of & P. 38 C.F.R. reports of interpret examiner to medical (“[T]he correct course appel “[h]ow [the record and determine ]schedular for the Board extra[
action *9 poten a translate into lant’s] disabilities one is to cases such as this consideration tially disability”); 38 U.S.C. compensable prop- it for the raise the issue and remand 7104, 7703; §§ 4.1 38 C.F.R. in procedural actions outlined er (“This primarily guide 3.321(b)(1).”). rating schedule regu- in nothing I see resulting disability in the evaluation of & P to lation to enable the Director C injuries of diseases and types from all proper- or Board question whether RO of or incident to encountered as result ly found the schedular evaluations be (“It Further, of & authorizing the Director C service.”), responsi is the 4.2 military findings overrule the Board’s interpret specialist bility respect adequacy of the schedular light of the reports of examination would frustrate the Board’s evaluations history, reconciling the whole recorded 7104(a). authority. pellate See 38 U.S.C. picture a consistent so reports into various Similarly, if the Director of C & P is able rating may accurately re that the current findings respect to set aside the RO’s disability present.”), flect the elements steps, the RO supra, to the first two (“Where to which question there is a as 4.7 ability be handcuffed ade would applied, the shall be of two evaluations quately compensate a veteran. See 38 assigned if the evaluation will higher § 4.2. nearly approxi more disability picture for that rat required the criteria mates Secretary’s posi- I would hold that the 20.101(a) (2008) (“[T]he Board is ing.”), respect tion in this is inconsistent with statutes, regula by applicable bound practice administrative and 38 C.F.R. both Af Department tions of the Veterans 3.321(b)(1); accordingly the Court is not of the General precedent opinions fairs and Secretary’s posi- required to defer to the Department of the Veterans Counsel Georgetown tion. See Auer and Univ. Affairs.”); v. Therefore, see also Bernard respect- I Hosp., both (“Under gov decision, majority’s fully concur with the regulations, pertaining but not its discussion to the role erning statutes deciding Director of & P. jurisdiction is limited to C ‘appeals’ by of decisions questions delegates.”) (citing 38
Secretary or his 7104). Unlike the Director C
U.S.C. P, province of the RO and
& it is the engage fact-finding the first
Board to
instance, makes them the enti which best
ties within to assess the claimant’s VA POUSSON, Appellant, A. James symptomatology level of evalu to determine whether schedular symptoms, contemplates ation those SHINSEKI, Secretary Eric K. disability picture claimant’s whether the Affairs, Appellee. Veterans factors such as exhibits other related those No. 07-3315. regulation “governing West, Hensley norms.” 212 F.3d Appeals United States Court 7261(a)(4), (citing 38 U.S.C. for Veterans Claims. (c)); see also Argued Dec. 2008. Moore, (“Rating spe Decided March determine, through cialists schedule, effect of a on a By living.”).
claimant’s earn
sanctioning analy the Director of C & P’s already
sis of the factors considered majority effectively
RO or
transforms the Director of & P into a
fact-finder. notes present that the case proce differs claim”); see also 511(a), durally 7104(a) (“All the questions in a matter ... appellant was challenging finding by subject the by decision the Secretary shall Board that he had not met require the subject to one appeal review on to the ments for referral for extraschedular con Board.”); ... Am. Disabled Veterans v. Thus, sideration. the issue analyzed by Sec’y Affairs, Veterans 327 F.3d the Court Thun was whether (Fed.Cir.2003) (“Together [sections] 1. The Court notes § that 38 C.F.R. continue entity, to refer to that mindful that also authorizes the Secretary Under for Bene- analysis our would be identical if the Under fits to approve an rating. Be- Secretary for Benefits had been implicated particular cause this case was sent instead. Compensation and Pension Service we will and con awards approve” Board 7104(a) that the dictate 511(a) and emphasis the substantial making tradicts Secretary in on behalf acts requirement on the placed has pro claims and on decision ultimate consideration, in the first Secre appeal on review ‘one vides indi one of the instance, done must be ‘subject to decision question tary’ of a 3.321(b)(1). 511(a).”). See specified [section] viduals Secretary’ under Thun, 22 jurisdic see also Vet.App. at the Court’s Floyd, 9 unlike Section (Director & P deter limitations statute, no contains tional claim whether, justice, favorable to review to accord Board’s mines 7104(a) extrasche- requires Compare U.S.C. picture findings. ant’s Indeed, 7261(a)(4). Vet. Bagwell U.S.C. rating); dular entirety instance, (in to review first permitted Board App. U.S.C. below. determining whether proceedings limited (The is “based review 7104(a) consider submission proceeding Moreover, record entire we dis appropriate). ation is and ma of all evidence upon consideration colleague’s des concurring with our agree record”). It follows entity terial exclusive as the of the RO ignation whether has necessary finding the fact performing an extraschedu- award not to level the claimant’s to assess all three appropriate adequacy symptomatology Vet. forth Thun. set elements regula given rating schedule 116; 38 C.F.R. App. at RO to seek provides expressly tion