Frederick L. Payne v. Robert L. Wilkie ( 2019 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3439
FREDERICK L. PAYNE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued January 25, 2019 Decided August 9, 2019)
Ethan F. Maron, of Washington, D.C., for the appellant.
Sarah Catherine Blackadar, with whom James M. Byrne, General Counsel; Mary Ann
Flynn, Chief Counsel; and Kenneth A. Walsh, Deputy Chief Counsel, were on the brief, all of
Washington, D.C., for the appellee.
Before DAVIS, Chief Judge, and BARTLEY and MEREDITH, Judges.
MEREDITH, Judge: The appellant, Frederick L. Payne, through counsel appeals a
September 26, 2017, decision by the Board of Veterans' Appeals (Board) that denied entitlement
to initial disability ratings in excess of 50% and 40% for hand arm vibration syndrome, right
(major) and left (minor) carpal tunnel syndrome, respectively (collectively, upper extremity
disabilities). Record (R.) at 1-39. The Board also determined that no action was necessary1 with
respect to entitlement to the following benefits because the appellant did not file formal "new
claims" pursuant to 38 C.F.R. § 3.155 (2017):2 (1) entitlement to a total disability rating based on
1
There is no dispute between the parties that, when the Board determined that "no further action is
necessary, . . . with respect to the claims previously referred or any claims not formally filed," R. at 6, it implicitly
determined that it lacked jurisdiction over those claims, Appellant's Brief (Br.) at 10; Secretary's Br. at 13-20;
Appellant's Supplemental (Supp.) Br. at 1-10; Secretary's Supp. Br. at 1-8. The Court agrees and, as discussed below,
will review the Board's determination de novo.
2
Effective February 19, 2019, VA amended portions of § 3.155 to comply with the appeals processing
changes mandated by the Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA), Pub. L. No.
115-55, 131 Stat. 1105 (Aug. 23, 2017). See VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 168-69
(Jan. 18, 2019) (final rule); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449, 2449 (Feb. 7, 2019)
(notification of effective date). However, the subparagraph to be interpreted in this appeal—38 C.F.R. § 3.155(d)(2)
(2017), effective from March 24, 2015, to February 18, 2019 (the post-2014 version)—was unaffected. Thus, for
purposes of this appeal, citations to § 3.155(d)(2) will refer to the post-2014 version, which remains the same as the
February 2019 version in effect on the date of this decision.
individual unemployability (TDIU) prior to March 4, 2005; (2) disability compensation for erectile
dysfunction (ED) as secondary to the appellant's service-connected disabilities; and (3) special
monthly compensation based on the loss of use of a creative organ (SMC(k)). R. at 5-6, 37.3
This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was submitted to a panel of the Court, with oral
argument, to address two issues of first impression. See Frankel v. Derwinski, 1 Vet. App. 23,
25-26 (1990). First, whether section 1114(k) of title 38, U.S. Code, limits potential entitlement to
SMC(k) to veterans with certain service-connected disabilities or precludes a theory of entitlement
based on a multi-link causal chain between the service-connected disability and the anatomical
loss or loss of use of one or more creative organs. Second, whether VA's 2014 amendment to
§ 3.155 requires that a veteran file a formal claim for entitlement to SMC(k) as an ancillary benefit
to a service-connected disability for the issue to be within the Board's jurisdiction.4 Further, to
assist the Court in the resolution of these matters, the Court directed the parties to file supplemental
briefs, which they did on September 27, 2018. For the following reasons, the Court will reverse
the portions of the Board's decision that determined that it lacked jurisdiction over the matters of
entitlement to SMC(k) and TDIU prior to March 4, 2005, and remand the matters for further
proceedings consistent with this decision. The Court will affirm the portion of the Board's decision
that denied entitlement to increased initial disability ratings for the upper extremity disabilities.
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from February 1980 to July 1992.
R. at 16699. Upon discharge, he filed disability compensation claims for bilateral carpal tunnel
syndrome. R. at 16692-95. In April 1993, a VA regional office (RO) granted entitlement to
disability compensation and awarded 10% disability ratings for each hand, effective July 14, 1992,
R. at 16650-55; and, in July 1993, the appellant disagreed with the assigned disability ratings, R. at
3
The Board also determined that the issue of entitlement to TDIU after August 31, 2011, was not reasonably
raised by the record or the appellant. The appellant does not raise any argument concerning that Board determination
or the Board's finding that it lacked jurisdiction over a new claim for entitlement to disability compensation for ED as
secondary to the appellant's service-connected disabilities. Therefore, the Court finds that he has abandoned his appeal
of these issues and will dismiss the appeal as to the abandoned issues. See Pederson v. McDonald, 27 Vet. App. 276,
285 (2015) (en banc).
4
The University of Miami School of Law hosted oral argument at the Storer Auditorium at the University of
Miami School of Business Administration. The Court thanks both schools for their hospitality.
2
16642. In August 1993, the RO issued a Statement of the Case (SOC) that denied entitlement to
higher disability ratings. R. at 16633-41. Although the appellant did not perfect an appeal to the
Board, the record reflects that his 1993 appeal did not become finally denied because the August
1993 SOC was not mailed to the appellant's correct address. R. at 5212.
After a lengthy procedural history, in August 2004, the RO issued an SOC increasing the
disability rating for carpal tunnel syndrome of the right hand to 30%, effective July 14, 1992, and
to 50%, effective February 26, 2003; and of the left hand to 20%, effective July 14, 1992, and to
40%, effective February 26, 2003. R. at 15556-77. The appellant perfected his appeal in
September 2004. R. at 15382-532.
In March 2005, while his appeal was pending, he filed a request for TDIU, alleging that he
was unable to secure or follow substantially gainful employment as a result of his upper extremity
disabilities. R. at 15201-02, 15212-14. The RO granted his request in an April 2005 rating decision
and assigned an effective date of March 4, 2005. R. at 15188-93. The appellant did not appeal the
April 2005 rating decision. However, he continued to pursue appeals as to the appropriate
evaluations for his service-connected upper extremity disabilities.
After several Board decisions and appeals to the Court, in July 2013, the RO increased the
initial disability ratings for right and left carpal tunnel syndrome to 50% and 40%, respectively,
both effective July 14, 1992. R. at 2966-74. The Board remanded the matters for further
development in February 2015. R. at 1932-51. A March 2015 VA treatment note reflects that the
clinician advised the appellant "on doing aquatic exercises since he is not able to do heavy exercise
given multiple surgeries to his upper extremities." R. at 285. The clinician noted that the appellant
has "low testosterone likely due to low [sex-hormone-binding globulin levels] from obesity," his
"main symptom[] is [ED] which is likely due to uncontrolled [type 2 diabetes]," and "[t]estosterone
will not help with improving ED." Id. A May 2015 VA examination report further reflects that he
had been impotent and "unable to obtain a penile erection since May 2014." R. at 564.
In October 2015, the Board denied initial disability ratings in excess of 50% and 40%,
respectively, for right and left hand arm vibration syndrome on schedular and extraschedular bases
and found that the issue of entitlement to TDIU prior to March 4, 2005, had not been raised by the
record because the appellant did not appeal the effective date assigned in the April 2005 rating
decision that granted TDIU. R. at 728-57. On appeal, the Court vacated the Board's decision and
3
remanded the matters for readjudication pursuant to the terms of the parties' May 2016 joint motion
for remand (JMR). R. at 714-25.
The appellant's counsel, in September 2016, submitted written argument to the Board,
asserting that the appellant was entitled to TDIU from July 14, 1992, to March 3, 2005, and to
separate disability ratings for the upper extremities under diagnostic codes (DCs) for the lower
extremities because his bilateral arm pain inhibited his ability to ambulate, thereby resulting in
functional loss of his lower extremities. R. at 117-25; see R. at 122-25 (vocational expert's opinion
submitted in support of TDIU argument). He also argued that SMC(k) for loss of use of a creative
organ was warranted as an ancillary benefit to the upper extremity claims and proffered the
following:
A May 2015 VA examination report related that the [appellant] had been impotent
and unable to obtain a penile erection since May 2014. . . . [The appellant's] weight
gain has been exacerbated by his service-connected upper extremity conditions.
The VA treatment record shows that the [appellant] is morbidly obese, and a
March 2007 VA primary care note observed that obesity had contributed to
hypertension and [a] history of transient ischemic attack. The [appellant] is
presently service-connected for cardiovascular disease, rated at [100%]. In short, it
is at least as likely as not that [the appellant's] service-connected upper extremity
disorders have materially contributed to conditions, such as obesity and
cardiovascular disease, associated with [ED].
R. at 120.
In a December 2016 decision, the Board remanded the matters of entitlement to initial
disability ratings in excess of 50% and 40% for the upper extremity disabilities for compliance
with the May 2016 JMR, and referred to the RO "new claims for an effective date earlier than
March 4, 2005[,] for the award of TDIU, [disability compensation] for [ED] as secondary to the
[appellant's] service-connected disabilities, and entitlement to [SMC(k)]" for appropriate action,
to include forwarding to the appellant and his representative the VA standardized form for filing
claims. R. at 619-20 (citing 38 C.F.R. § 3.155(b)(1)(ii) (2015)). Later that month, the RO mailed
the VA standardized forms to the appellant and his counsel, R. at 182-84, but the appellant did not
return the forms. The RO subsequently issued a Supplemental SOC denying initial disability
ratings in excess of 50% and 40% for the upper extremity disabilities. R. at 170-79. In April 2017,
the appellant's counsel submitted written argument to the Board, referencing the arguments raised
in her September 2016 brief and adding that, "contrary to his most recent VA examination, [the
4
appellant was] experiencing muscle wasting in the right hand" and that a more contemporaneous
medical examination was warranted. R. at 114-15.
On September 26, 2017, the Board denied higher initial disability ratings for the appellant's
upper extremity disabilities and determined that the issues of entitlement to SMC(k) and TDIU
prior to March 4, 2005, were not before it. R. at 1-39. This appeal followed.
II. ANALYSIS
A. The Board's Jurisdiction to Adjudicate Entitlement to SMC(k)
"It is well settled that the Court has jurisdiction to determine whether the Board had
jurisdiction to take the action it takes in a decision," Young v. Shinseki, 25 Vet. App. 201, 203
(2012) (en banc order), and "the Court exercises de novo review over Board determinations that
are critical to its jurisdiction," Evans v. Shinseki, 25 Vet. App. 7, 10 (2011). The ultimate burden
of establishing jurisdiction rests with the appellant. See McNutt v. Gen. Motors Acceptance Corp.
of Ind., 298 U.S. 178, 188-89 (1936); Bethea v. Derwinski, 2 Vet. App. 252, 255 (1992).
As explained below, the Board erred when it determined that it lacked jurisdiction over
entitlement to SMC(k). Section 3.155(d)(2) of title 38, Code of Federal Regulations, does not
require claimants to file a formal claim to assert entitlement to ancillary benefits, such as SMC(k).
And, contrary to the Secretary's assertions, section 1114 does not limit potential entitlement to
SMC(k) to veterans with certain service-connected disabilities, nor does it preclude a theory of
entitlement based on a multi-link causal chain between the service-connected disability and the
anatomical loss or loss of use of one or more creative organs. Thus, the Board should have
considered the merits of the appellant's explicitly raised argument that he was entitled to SMC(k)
as an ancillary benefit to his service-connected upper extremity disabilities.
1. Parties' Arguments and The Board's Decision
The appellant argues that the Board legally erred when it required that he file a formal
claim for entitlement to SMC(k) for his loss of use of a creative organ as ancillary to his
service-connected upper extremity disabilities before it could exercise jurisdiction over the matter.
Appellant's Br. at 11. He asserts that the matter was within the Board's jurisdiction and should have
been adjudicated in the first instance because (1) the plain text of section 1114(k) does not indicate
that Congress intended to preclude his theory of entitlement to SMC(k); (2) he explicitly argued
for entitlement to SMC(k) to the Board and proffered evidence demonstrating a causal relationship
5
between his service-connected upper extremity disabilities and his loss of use of a creative organ;
and (3) the post-2014 version of § 3.155 does not require claimants to file a formal claim for
entitlement to ancillary benefits, such as SMC(k). Id.; Reply Br. at 7-10; Appellant's Supp. Br. at
3-14.
The Secretary counters that the Board properly declined to adjudicate entitlement to
SMC(k) because it lacked jurisdiction over the matter. Secretary's Br. at 18-19. He asserts that the
Board lacked jurisdiction because (1) the matter before the Board was not for a service-connected
condition affecting the use of a creative organ, such as ED or a genitourinary disability under
38 C.F.R. § 4.115b; and (2) even under the appellant's explicitly raised SMC(k) argument, his loss
of use of a creative organ was not "the result of" (immediately caused by) his service-connected
upper extremity disabilities—the only disabilities before the Board. 38 U.S.C. § 1114(k); see
Secretary's Br. at 18-19; Secretary's Supp. Br. at 2-12; Oral Argument ("Oral Argument") at
28:33-28:41, 30:05-08, 32:06-19, Payne v. Wilkie, U.S. Vet. App. No. 17-3439 (oral argument
held Jan. 25, 2019), http://www.uscourts.cavc.gov/documents/Payne.mp3. Therefore, he argues,
although the 2014 amendment to § 3.155 "did not change the requirement to consider ancillary
benefits such as SMC," here, the Board lacked jurisdiction to decide the issue because "the
disability or condition to which SMC[(k)] would be ancillary[—ED—]was not within the Board's
jurisdiction." Secretary's Supp. Br. at 5.
In the decision on appeal, the Board acknowledged that, in September 2016, the appellant
explicitly argued for entitlement to SMC(k) based on the loss of use of a creative organ. R. at 5-6.
However, the Board determined that the issue of entitlement to SMC(k) was not before it because
the appellant did not file a formal "new claim[]" for this benefit. R. at 5-6. It explained that, after
September 2014, § 3.155 requires that "all claims governed by VA's adjudication regulations must
be filed on standard forms prescribed by VA, regardless of the type of claim or posture in which
the claim arises." R. at 6. The Board found that, pursuant to the instructions in its December 2016
decision, the RO mailed to the appellant the standard form required to file a formal claim; and,
although he raised the same argument for entitlement to SMC(k) in his April 2017 brief to the
Board, see R. at 114, he never returned the required form, R. at 6. Thus, the Board concluded that
"the [appellant] has not formally filed new claims for benefits, and no further action is necessary
by the Board with respect to the claims previously referred or any claims not formally filed since
that time," including the matter of entitlement to SMC(k) for loss of use of a creative organ. Id.
6
To address the parties' arguments, the Court will first consider whether section 1114(k)
precludes the appellant's theory of entitlement. Then, based on our conclusion that section 1114(k)
is not limited to veterans with certain service-connected disabilities and that the statute
contemplates a broad causation requirement, the Court will consider whether the post-2014 version
of § 3.155(d)(2) required the Board to adjudicate the appellant's explicitly raised theory of
entitlement as ancillary to his service-connected upper extremity disabilities or whether the
appellant was required to file a formal claim for entitlement to SMC(k).
2. Statutory Interpretation of Section 1114(k)
In addition to the basic monthly rates of disability compensation for injuries or diseases
incurred in or aggravated by active military service, section 1114(k) provides that a higher level
of monthly compensation—SMC(k)—may be paid to any veteran who, "as the result of
service-connected disability, has suffered the anatomical loss or loss of use of one or more creative
organs." 38 U.S.C. § 1114(k); see 38 C.F.R. § 3.350 (2019). "When a statute is at issue, we begin
with the statutory language." McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008); see Williams
v. Taylor, 529 U.S. 420, 431 (2000). "The statute's plain meaning is derived from its text and its
structure." McGee, 511 F.3d at 1356; see Gardner v. Derwinski, 1 Vet. App. 584, 586 (1991)
("Determining a statute's plain meaning requires examining the specific language at issue and the
overall structure of the statute."), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993),
aff'd, 513 U.S. 115 (1994). The "plain meaning must be given effect unless a 'literal application of
[the] statute will produce a result demonstrably at odds with the intention of its drafters.'" Gardner,
1 Vet. App. at 586-87 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
The first question in statutory interpretation is always "whether Congress has directly
spoken to the precise question at issue." Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984). "If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."
Id. at 842-43. The interpretation of a statute is a question of law that the Court reviews de novo,
without deference to the Board's interpretation. See Butts v. Brown, 5 Vet. App. 532, 539 (1993)
(en banc).
Here, the questions at issue are the following: (1) Does section 1114(k) limit potential
entitlement to SMC(k) to veterans who suffer the anatomical loss or loss of use of one or more
creative organs as a result of specific service-connected disabilities? (2) Does section 1114(k)
7
preclude a theory of entitlement based on a multi-link causal chain between a service-connected
disability and the loss of use of a creative organ? As explained below, the Court concludes that the
plain text of section 1114(k) makes clear that Congress specifically and unambiguously answered
both questions at issue: "No."
Section 1114(k) provides: "[I]f the veteran, as the result of service-connected disability,
has suffered the anatomical loss or loss of use of one or more creative organs," he or she may be
entitled to SMC(k). 38 U.S.C. § 1114(k) (emphasis added). First, the plain text of section 1114(k)
does not specify the types of service-connected disabilities that may result in the "anatomical loss
or loss of use of one or more creative organs" for purposes of that subsection. However, in other
subsections of section 1114, Congress explicitly limited entitlement to SMC to veterans with
specific service-connected disabilities. See, e.g., 38 U.S.C. § 1114(o), (p) (specifying
service-connected blindness or deafness as prerequisites for some types of SMC). Because
Congress did not explicitly include such limitations when drafting section 1114(k), the Court
presumes that it did not intend to limit potential entitlement to SMC(k) only to veterans with
specific service-connected disabilities. See Russello v. United States, 464 U.S. 16, 23 (1983)
("'[W]here Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.'" (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722
(5th Cir. 1972))).
Second, section 1114(k)'s textual causation requirement—that the anatomical loss or loss
of use of a creative organ be "the result of" a service-connected disability—is broad and does not
indicate that Congress intended to preclude a theory of entitlement based on a multi-link causal
chain between the service-connected disability and the loss of use. 38 U.S.C. § 1114(k).5 See, e.g.,
Gardner, 513 U.S. at 119-20 (holding that "as a result of" in a veterans compensation statute,
38 U.S.C. § 1151 (1988), "is naturally read simply to impose the requirement of a causal
connection").
5
Because the issue here is only whether the appellant's theory of entitlement to SMC(k) is precluded by
statute and, thus, could not have been adjudicated as a potential ancillary benefit to his service-connected upper
extremity disabilities, the Court makes no conclusions as to whether the length of the causal chain between a
service-connected condition and the loss of use of a creative organ may be taken into account in deciding on the merits
whether SMC is warranted or what degree of causation may be warranted in other contexts.
8
In Murakami v. United States, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) interpreted "as a result of"—albeit, in the context of the Civil Liberties Act of 1988,
50 U.S.C. app. § 1989b-7 (2000)—as "broad language." 398 F.3d 1342, 1351 (Fed. Cir. 2005)
("[T]he verb 'result' commonly means 'to proceed, spring, or arise as a consequence, effect, or
conclusion.'" (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY 1937 (1993))). The Federal
Circuit interpreted "as a result of" to require merely a showing of "a consequence or effect" and
explained that this broad interpretation was consistent with the Supreme Court's and other circuit
courts' interpretation of the same phrase. Id. at 1351-52 (citing Gardner, 513 U.S. at 119-20; Black
Hills Aviation, Inc. v. United States, 34 F.3d 968, 975 (10th Cir. 1994) ("The use of the plain
language—'as a result of'[ in a U.S. Army regulation]—is logically interpreted to mean 'caused
by.'")).
The Secretary argues that, consistent with the appellant's theory of entitlement to SMC(k)
raised to the Board and the evidence of record, the service-connected upper extremity disabilities
caused obesity, which caused other non-service-connected disabilities, which caused his loss of
use of a creative organ. Secretary's Supp. Br. at 9-10. He essentially argues that, because the upper
extremity disabilities are the first link in a multi-link causal chain, rather than the last link or a link
closer to the end of the chain, the loss of use of a creative organ could not have potentially been
"the result of," 38 U.S.C. § 1114(k), the service-connected upper extremity disabilities; and
therefore, the issue of entitlement to SMC(k) was not within the scope of the upper extremity
disability claims on appeal to the Board. Id.
Notably, the Secretary has not pointed to any authority to support his argument for a narrow
interpretation of section 1114(k)'s causation requirement. See Secretary's Supp. Br. at 8-10.
Instead, he essentially invites the Court to add limitations into the statute where Congress did not;
the Court, however, "resist[s] reading words or elements into a statute that do not appear on its
face." Bates v. United States, 522 U.S. 23, 29 (1997). Following the Federal Circuit's reasoning,
"if Congress had intended eligibility only to" veterans who allege a closer causal connection
between their service-connected disability and the anatomical loss or loss of use of a creative
organ, "it could have used stricter language in crafting [section 1114(k)]." Murakami, 398 F.3d at
1352 (citing Williams, 529 U.S. at 431 (stating that, when interpreting a statute, "[w]e give the
words . . . their ordinary, contemporary, common meaning, absent an indication Congress
intended them to bear some different import" (internal quotation marks omitted)); Doyon,
9
Ltd. v. United States, 214 F.3d 1309, 1316 (Fed. Cir. 2000) ("If Congress had intended such a
limited effect, it could have crafted a more narrowly tailored statute.")).
In sum, the Court holds that the plain text of section 1114(k) does not limit potential
entitlement to SMC(k) to veterans with certain service-connected disabilities or preclude a theory
of entitlement based on a multi-link causal chain between the service-connected disability and the
anatomical loss or loss of use of one or more creative organs; and that ends the matter. See
Procopio v. Wilkie, 913 F.3d 1371, 1375 (Fed. Cir. 2019). Accordingly, the Court is not persuaded
by the Secretary's argument that the appellant's expressly raised theory of causation—that the
upper extremity disabilities "materially contributed to his development of conditions, such as
obesity and [service-connected] cardiovascular disease, associated with [ED]"—was, essentially,
too tenuous for the issue of entitlement to SMC(k) to be before the Board as a potentially ancillary
benefit to the upper extremity claims on appeal.6 R. at 120; see Secretary's Br. at 18-19; Secretary's
Supp. Br. at 2-12.
3. The post-2014 Version of § 3.155
Having determined that section 1114(k) does not preclude a theory of entitlement to
SMC(k) as a potentially ancillary benefit to the appellant's service-connected upper extremity
claims, the Court must assess whether the Board erred when it determined that the issue of SMC(k)
was not before it because the appellant did not file a formal claim for SMC(k) pursuant to the
post-2014 version of § 3.155. We start with the general proposition, announced prior to the
adoption of the post-2014 version of § 3.155, that Congress has mandated that VA "'fully and
sympathetically develop the veteran's claim to its optimum before deciding it on the merits.'"
Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998) (quoting H.R. Rep. No. 100-963, at 13
(1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5794-95); see 38 C.F.R. § 3.103(a) (2019) ("[I]t is
the obligation of VA . . . to render a decision which grants every benefit that can be supported in
law while protecting the interests of the Government.").
In accordance with that mandate, the Court has previously held that, when developing a
claim "'to its optimum,'" VA adjudicators should consider entitlement to SMC(k) as an ancillary
6
To be clear, the Court expresses no opinion on the merits of the appellant's theory of entitlement, i.e.,
whether his loss of use of a creative organ is sufficiently caused by his upper extremity disability, or whether the
evidence of record, alone, would have been sufficient to reasonably raise this theory of entitlement and required the
Board to adjudicate it as an inferred issue. As discussed above, the Court concludes only that section 1114(k) does not
foreclose the appellant's theory.
10
benefit to basic disability compensation where the medical evidence indicates potential eligibility.
Norris v. West, 12 Vet. App. 413, 420 (1999) (quoting Hodge, 155 F.3d at 1362-63); see Akles
v. Derwinski, 1 Vet. App. 118, 121 (1991) (holding that VA "should have inferred from the
veteran's request for an increase in benefits involving a creative organ a request for [SMC(k),]
whether or not it was placed in issue by the veteran" because VA's Adjudication Procedures
Manual (M21-1), "which contains VA's policy and procedures for the adjudication of claims,
provides for the consideration of [SMC] as an inferred issue" (internal quotation marks omitted));
see generally MANUAL M21-1, pt. III, subpt. iv, ch. 6, § B(2) (last revised on Jan. 8, 2018).
Further, the Board is required to consider all theories of entitlement to VA benefits that are either
raised by the claimant or reasonably raised by the record, Robinson v. Peake, 21 Vet. App. 545,
553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), and the Court
has jurisdiction to review whether the Board erred in failing to consider such theories, Barringer
v. Peake, 22 Vet. App. 242, 244 (2008).
Here, the Board noted, and the parties do not dispute, that the appellant explicitly argued
that he was entitled to SMC(k) for loss of use of a creative organ as a result of his service-connected
upper extremity disabilities. R. at 5. However, rather than adjudicate the matter on the merits, the
Board determined that the issue was not before it because the appellant had not filed a formal claim
for entitlement to SMC(k), pursuant to the post-2014 version of § 3.155. R. at 5-6.
In 2014, VA amended its regulations, effective March 2015, to require that all claims for
veterans benefits be filed on standardized VA forms, ending VA's prior practice of allowing
informal claims for benefits. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25,
2014). The post-2014 version of § 3.155 governs how a VA claimant files a claim for disability
benefits in compliance with that requirement. Subsection (b) provides that, if a claimant shows an
intent to file a claim, VA will forward the appropriate standard application form and, if the
completed form is received within 1 year, VA will consider the claim to have been filed as of the
date the initial intent was shown. Paragraph (d)(2) defines the scope of a claim as follows:
Once VA receives a complete claim, VA will adjudicate as part of the claim
entitlement to any ancillary benefits that arise as a result of the adjudication
decision (e.g., . . . entitlement to [SMC] under [38 C.F.R. § 3.350] . . . ). The
claimant may, but need not, assert entitlement to ancillary benefits at the time the
complete claim is filed. VA will also consider all lay and medical evidence of
record in order to adjudicate entitlement to benefits for the claimed condition as
well as entitlement to any additional benefits for complications of the claimed
11
condition . . . . VA's decision on an issue within a claim implies that VA has
determined that evidence of record does not support entitlement for any other issues
that are reasonably within the scope of the issues addressed in that decision. VA's
decision that addresses all outstanding issues enumerated in the complete claim
implies that VA has determined evidence of record does not support entitlement for
any other issues that are reasonably within the scope of the issues enumerated in
the complete claim.
38 C.F.R. § 3.155(d)(2). Similar to the question of statutory interpretation discussed above, if the
plain meaning of § 3.155 is clear from the text, that meaning controls and that is "'the end of the
matter.'" Tropf v. Nicholson, 20 Vet. App. 317, 320 (2006) (quoting Gardner, 513 U.S. at 120).
The Court concludes that the plain text of § 3.155(d)(2) clearly and unambiguously does
not require that a claimant file a formal claim to assert entitlement to ancillary benefits, including
entitlement to SMC(k). See id.; Appellant's Supp. Br. at 3-4. The plain text of the regulation
explicitly provides, and the Secretary appears to concede, that VA should continue to adjudicate
entitlement to ancillary benefits, such as SMC(k) "as part of" the underlying claim and the claimant
"may, but need not, assert entitlement to ancillary benefits." 38 C.F.R. § 3.155(d)(2); see
Secretary's Br. at 18; Secretary's Supp. Br. at 5 ("The amendment to . . . § 3.155(d) did not change
the requirement to consider ancillary benefits such as SMC."); see also 79 Fed. Reg. at 57,672
(explaining that the amendment to § 3.155 "does not alter VA's general practice of identifying and
adjudicating issues and claims that logically relate to and arise in connection with a claim pending
before VA," including entitlement to ancillary benefits, and that this is consistent with § 3.103(a)
and VA's duty to develop a claim to its optimum). Indeed, the crux of the Secretary's argument on
appeal is that the Board did not have jurisdiction to address SMC(k) because the disability claims
on appeal were not for ED or a genitourinary disability under 38 C.F.R. § 4.115b and did not
immediately cause the appellant's loss of use of a creative organ. Having rejected those arguments,
the Court further concludes that the Board erred when it interpreted the post-2014 version of
§ 3.155 to require that the appellant file a formal claim for entitlement to SMC(k) as an ancillary
benefit to his service-connected upper extremity claims.
In sum, because the plain text of § 3.155(d)(2) does not require that a claimant file a formal
claim to assert entitlement to SMC(k) and, as previously discussed, the plain text of section 1114
does not preclude the appellant's causal theory of entitlement to SMC(k) as a potentially ancillary
benefit to his service-connected upper extremity claims, the Board erred when it declined to
adjudicate the explicitly raised issue of entitlement to SMC(k). See Robinson, 21 Vet. App. at 553.
12
Accordingly, the Court will reverse the portion of the Board's decision that implicitly found that it
lacked jurisdiction over the issue of entitlement to SMC(k) and remand the matter for the Board
to adjudicate it in the first instance. See Meakin v. West, 11 Vet. App. 183, 187 (1998) (reversing,
on de novo review, a Board determination that it lacked jurisdiction); see also Tucker v. West,
11 Vet. App. 369, 374 (1998) ("[W]here the Board has incorrectly applied the law, failed to provide
an adequate statement of reasons or bases for its determinations, or where the record is otherwise
inadequate, a remand is the appropriate remedy."); Turco v. Brown, 9 Vet. App. 222, 224 (1996)
(explaining that whether the appellant is entitled to special monthly benefits is a factual finding).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, including the specific arguments raised here on appeal, and the Board is required
to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet. App. 529, 534
(2002) (stating that, on remand, the Board must consider additional evidence and argument in
assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet. App. 369, 372-73
(1999) (per curiam order). The Court reminds the Board that "[a] remand is meant to entail a
critical examination of the justification for the decision," Fletcher v. Derwinski, 1 Vet. App. 394,
397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
B. The Board's Jurisdiction to Adjudicate Entitlement to TDIU Prior to March 4, 2005
The appellant argues that the Board erred when it determined that it lacked jurisdiction
over entitlement to TDIU prior to March 4, 2005, in violation of Rice v. Shinseki, 22 Vet. App. 447
(2009) (per curiam), and contends that the evidence supports such entitlement. Appellant's Br. at
9-11 (citing R. at 122-25); Reply Br. at 6. The Secretary maintains that the Board properly
determined that the issue was not before it because VA bifurcated the issue in the April 2005 rating
decision, which the appellant did not appeal. Secretary's Br. at 14-17.
In the decision on appeal, the Board determined that the issue of entitlement to TDIU prior
to March 4, 2005, was not before it because the appellant had not "filed the necessary forms to
initiate a formal claim." R. at 37; see R. at 5-6.7 Whether the Board properly bifurcated an issue is
7
The Court notes that the Board mischaracterized the appellant's request for TDIU prior to March 2005 as a
"claim[] for an effective date earlier than March 4, 2005." R. at 5; see R. at 37. In Rudd v. Nicholson, the Court clarified
that there may be no freestanding claims for an earlier effective date. 20 Vet. App. 296, 300 (2006) (dismissing the
appeal, in part, because the appellant may not file a freestanding claim for an earlier effective date in an attempt to
overcome the finality of an RO decision that assigned the original effective date; rather, only a challenge based on
clear and unmistakable error in the final decision is the appropriate mechanism). However, the Board's error is
harmless because, as discussed below, the issue of entitlement to TDIU was part and parcel of the appellant's appeal
13
a question of law impacting its jurisdiction that this Court reviews de novo. Harper v. Wilkie,
30 Vet. App. 356, 359 (2018). Relevant to determining whether the issue of TDIU was before the
Board, the Court in Rice explained that "a request for TDIU . . . is not a separate claim" and that,
"[w]hen entitlement to TDIU is raised during the adjudicatory process of the underlying disability
or during the administrative appeal of the initial rating assigned for that disability, it is part of the
claim for benefits for the underlying disability." 22 Vet. App. at 453-54. The Court concluded that,
because the veteran submitted evidence of unemployability when he appealed the initial disability
rating assigned for his mental condition and claimed he was unemployable as a result of that
condition, "the determination of whether he [was] entitled to TDIU, including the effective date
for that award, [was] part and parcel of the determination of the initial rating for that disability."
Id. at 454-55.
The Secretary's argument—that the April 2005 RO decision served to bifurcate the issue
of TDIU from the appellant's claim for benefits for the upper extremity disabilities, thereby
removing it from appellate status and requiring the appellant to file an NOD as to that decision—
is controlled by the Court's recent decision in Harper. In Harper, the Court held that, where the
issue of TDIU was part and parcel of the appellant's appeal for a higher initial disability rating for
his underlying mental condition, the award of TDIU for a portion of the appeal period "'did not
serve to bifurcate the appeal, but instead served simply to partially grant [Mr. Harper's] request for
TDIU.'" 30 Vet. App. at 360-61 (quoting Palmatier v. McDonald, 626 F. App'x 991, 995 (Fed. Cir.
2015)). The Court reasoned that the appellant's "NOD placed the issue of the appropriate disability
evaluation into appellate status and, therefore, because he was not awarded the highest rating
possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to
the effective date of the partial grant] remained on appeal." Id. at 362. Similarly, in this case, the
RO's award of TDIU effective from March 2005 served as a partial grant of benefits and did not
bifurcate the issue of TDIU from the appeal of the initial disability rating for the upper extremity
disabilities. Thus, consistent with Harper, here, the Board had jurisdiction to consider the issue of
TDIU prior to March 2005, which remained in appellate status.
Because briefing in this matter preceded the Court's December 2018 Harper decision, at
oral argument, the Court asked the Secretary's counsel to clarify whether Harper changed the
for higher initial disability ratings for the upper extremities, which has been pending by virtue of his July 1993 Notice
of Disagreement (NOD). See R. at 16642.
14
Secretary's position regarding the Board's jurisdiction over the matter of entitlement to TDIU prior
to March 4, 2005. Oral Argument at 51:19-53:14. Counsel maintained that Harper did not control
the facts of this case, asserting that the procedural posture of the TDIU matter was distinguishable
from that in Harper. Id. Specifically, counsel argued that, here, the partial grant of TDIU occurred
before the Board adjudicated the first appeal of the underlying claims; whereas, in Harper, the
partial grant of TDIU occurred after the Board adjudicated the underlying claims. Id. The Court is
not persuaded that the Secretary's distinction makes any meaningful difference. Pursuant to
Harper, once the issue of the appropriate initial disability ratings for the appellant's upper
extremity disabilities was in appellate status by virtue of the July 1993 NOD, R. at 16642, the issue
of TDIU became part and parcel of the underlying upper extremity claims when he filed an
application for TDIU in March 2005, see Harper, 30 Vet. App. at 359.8
For these reasons, the Court will reverse the portion of the Board's decision that implicitly
found that, because the appellant did not file a formal claim for entitlement to TDIU for the period
prior to March 4, 2005, it lacked jurisdiction over that issue, and remand the matter for the Board
to adjudicate in the first instance. See Meakin, 11 Vet. App. at 187; see also Tucker, 11 Vet. App.
at 374. As with the matter of entitlement to SMC(k), on remand, the appellant may submit
additional evidence and argument on the remanded TDIU matter, including the specific arguments
raised here on appeal, and the Board must consider any such relevant evidence and argument. See
Kay, 16 Vet. App. at 534; Kutscherousky, 12 Vet. App. at 372-73; see also Fletcher, 1 Vet. App.
at 397.
C. Upper Extremity Disabilities
1. Duty to Assist: Reexaminations
The appellant argues that the Board erred in finding the May 27, 2015, VA examination
adequate to assess his right hand disability because he has developed muscle wasting in his hand
since his last examination on that date. Appellant's Br. at 13 (citing R. at 115); Reply Br. at 13-14.
He asserts that a more contemporaneous examination is therefore warranted. Appellant's Br. at
12-13. The Secretary counters that the appellant's mere citation to his counsel's April 2017
8
Because it is not in the interests of judicial efficiency or fairness to the opposing party, the Court will not
exercise its discretion to entertain the Secretary's argument—raised for the first time at oral argument—that the
appellant waived the issue of entitlement to TDIU prior to March 2005 because he did not raise the TDIU challenge
to the Board or this Court between 2012 and 2016, despite opportunities to do so with counsel. Oral Argument at
51:19-53:14. See Norvell v. Peake, 22 Vet. App. 194, 201 (2008) (explaining that this Court has "repeatedly
discouraged parties from raising arguments that were not presented in an initial brief to the Court").
15
argument to support the assertion of a material change in his disability is insufficient to trigger
VA's duty to obtain another examination or demonstrate error in the Board's decision. Secretary's
Br. at 26-28.
In the decision on appeal, the Board found the duty to assist satisfied in part because an
additional VA examination to evaluate alleged worsening of the appellant's muscle atrophy was
not warranted. R. at 8. The Board explained that (1) the service-connected upper extremity
disabilities were not accompanied by any separate and distinct muscular injury; (2) the evidence
gathered in the last 25 years was adequate to evaluate the disabilities on appeal; (3) the current
disability ratings assigned contemplate the appellant's reported muscle atrophy; and (4) the
objective evidence regarding the nature and etiology of the reported symptoms was more probative
than the appellant's assertions. Id.
To satisfy the duty to assist, VA may, under certain circumstances, be required to obtain a
thorough and contemporaneous medical examination to determine the current severity of a
claimant's disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also 38 U.S.C.
§ 5103A(d). Where the current level of disability is at issue in an appeal and VA has already
obtained such an examination, the duty to assist may require VA to provide an additional
examination—a reexamination—if the prior examination no longer reflects the current state of the
condition. See id.; see also 38 C.F.R. § 3.327 (2019). To trigger VA's duty to provide a
reexamination, "the [appellant] must come forward with at least some evidence that there has in
fact been a material change in his or her disability" since the prior examination. Glover v. West,
185 F.3d 1328, 1333 (Fed. Cir. 1999); see 38 C.F.R. § 3.327(a) ("Generally, reexaminations will
be required if . . . evidence indicates there has been a material change in a disability or that the
current rating may be incorrect."); see also Caffrey, 6 Vet. App. at 381 (finding that the Board in
1990 erred in finding a 1988 examination sufficiently contemporaneous to inform its decision
because the appellant presented postexamination evidence suggesting that his condition had
worsened). Neither a "bald, unsubstantiated claim for an increase in disability rating," Glover,
185 F.3d at 1333, nor the "mere passage of time" is sufficient evidence of a material change to
trigger VA's duty, Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding that the Board
in 2004 did not err in finding a 1999 examination sufficiently contemporaneous to inform its
decision because the appellant had not submitted any additional evidence showing a change in his
condition, nor had he alleged that his condition had worsened).
16
The Board's determination of whether the Secretary has fulfilled his duty to assist generally
is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. Van
Valkenburg v. Shinseki, 23 Vet. App. 113, 120 (2009). As with any material issue of fact or law,
the Board must provide a statement of the reasons or bases for its determination "adequate to
enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate
review in this Court." Allday v. Brown, 7 Vet. App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1);
Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).
The Court agrees with the Secretary that the appellant's assertion—that, contrary to the
May 2015 examination, he has muscle wasting—is insufficient to demonstrate clear error in the
Board's determination that a reexamination was not warranted. See Secretary's Br. at 26-28. The
Board considered the appellant's argument and, as noted above, provided several reasons why the
duty to assist did not require VA to afford a reexamination. R. at 8. Although the appellant may
disagree with the Board's conclusion, he has not argued that his assertion is sufficient to
demonstrate that his right hand disability symptoms materially changed as a result of muscle
wasting. See Glover, 185 F.3d at 1333; Palczewski, 21 Vet. App. at 182; Caffrey, 6 Vet. App. at
381; Appellant's Br. at 13 (citing R. at 115); Reply Br. at 13-14. In that regard, the Court further
notes that, although he generally alleges that the evidence is not sufficient to assess the severity of
his disabilities, he does not challenge the Board's finding that the current disability ratings assigned
contemplate his reported muscle atrophy, nor does he explain, in light of that finding, how he may
be entitled to a higher disability rating due to the alleged muscle wasting. Thus, he has not
demonstrated that the Board clearly erred in not remanding for a reexamination or that the Board's
statement of reasons or bases is inadequate. See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en
banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet. App. 166,
169 (1997) (holding that, on appeal to this Court, the appellant "always bears the burden of
persuasion").
2. Entitlement to a Higher Schedular Disability Rating due to Alleged Functional Loss of the
Lower Extremities
The appellant argues that the Board erred by failing to address an explicitly raised theory
of entitlement: Whether his service-connected upper extremity disabilities resulted in the
functional loss of his lower extremities to warrant a separate compensable rating. Appellant's Br.
at 16 (citing R. at 119-20); see Appellant's Supp. Br. at 15-20. He contends that his upper extremity
disorders cause painful arm motion when walking in cold weather and that, therefore, his upper
17
extremity disabilities "must be rated as if [they] were caused by abnormalities of the lower
extremities themselves." Appellant's Br. at 16-17 (citing Mitchell v. Shinseki, 25 Vet. App. 32, 37
(2011); 38 C.F.R. § 4.45(f) (2019)); Reply Br. at 10-11.9 The Secretary counters that, because the
appellant has not filed a formal claim for the lower extremities, "the issue of a rating by analogy
under the joint disability [DCs] for [his] lower extremities was not before the Board." Secretary's
Br. at 20; see Secretary's Supp. Br. at 15-16. In his reply brief, the appellant clarifies that he does
not seek disability compensation for lower extremities, but that he "seeks to be appropriately
compensated for symptoms of his upper extremities." Reply Br. at 10-11.
Although the Board did not address this explicitly raised theory of entitlement, the
appellant has not demonstrated that any error is prejudicial. See 38 U.S.C. § 7261(b)(2) (requiring
the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396,
409 (2009) (holding that the harmless-error analysis applies to the Court's review of Board
decisions and that the burden is on the appellant to show that he or she suffered prejudice as a
result of VA error). To support his argument, he cites to the Court's decision in Mitchell, which
held that, when evaluating musculoskeletal disabilities, pain that affects some aspect of the normal
working movements of the body may constitute functional loss that is compensable for VA
benefits purposes. 25 Vet. App. at 37; see 38 C.F.R. §§ 4.40, 4.45 (2019). However, he does not
explain how Mitchell applies here, where his upper extremity disabilities are rated as diseases of
the peripheral nerves and not as musculoskeletal disabilities, see R. at 1-39; 38 C.F.R. § 4.124a,
DCs 8512, 8515, and the alleged functional loss is experienced in the lower extremities, which are
not service connected. Nor does he contend that Mitchell should be extended to include these
circumstances. Also, to the extent that he is seeking additional compensation for arm pain caused
by walking, he has not argued or pointed to authorities suggesting that rating his arm condition
under other DCs would not violate VA's prohibition against pyramiding. See Esteban v. Brown,
9
To the extent that the appellant argues, in the alternative, that remand may be warranted for the Board to
determine whether he submitted an informal claim for benefits for his bilateral lower extremities at a November 2012
decision review officer hearing, the Court need not address that argument. See Appellant's Supp. Br. at 16-20. Rather,
the appellant is free to pursue any such claim at the RO and, if the benefit is granted, argue that an effective date from
November 2012 is warranted. See DiCarlo v. Nicholson, 20 Vet. App. 52, 56 (2006) ("[T]he appropriate procedure for
a claimant to press a claim believed to be unadjudicated (and for which there is no final decision that arguably failed
to consider the claim) is to pursue a resolution of the original claim, e.g., seek issuance of a final RO decision with
proper notification of appellate rights and initiate an NOD." (citing 38 U.S.C. §§ 5104, 7105)), aff'd, Dicarlo v. Peake,
208 F. App'x 988 (Fed. Cir. 2008) (per curiam); see also Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007)
(per curiam) (holding that, as part of an appeal of an effective-date decision, "an appellant can raise the fact that he or
she filed the original claim for the same disability at an earlier date than the claim which was subsequently granted").
18
6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14 (2019); see also 38 C.F.R. § 4.124a, DC 8515
(contemplating "pain with trophic disturbances").
Therefore, the Board's decision that denied entitlement to increased initial disability ratings
for the upper extremity disabilities on a schedular basis will be affirmed. See 38 U.S.C.
§ 7261(b)(2); Sanders, 556 U.S. at 409.
3. Extraschedular Consideration
The appellant argues that the Board provided an inadequate statement of reasons or bases
for declining to award an extraschedular rating based on his assertion that his upper extremity
disabilities caused his obesity. Appellant's Br. at 13-16; Reply Br. at 11-13. Specifically, he asserts
that the Board relied on its own impermissible medical determination to find that his
service-connected disabilities did not cause obesity. Appellant's Br. at 13-16 (citing Colvin
v. Derwinski, 1 Vet. App. 171, 172 (1991), overruled on other grounds by Hodge, 155 F.3d at
1356-64); Reply Br. at 11-13. The Secretary disputes these arguments and further contends that
the appellant fails to demonstrate prejudicial error. Secretary's Br. at 21-26.
The VA rating schedule is based, "as far as practicable, upon the average impairments of
earning capacity." 38 C.F.R. § 3.321(b)(1) (2019).10 In exceptional cases, the rating schedule may
be found inadequate to compensate a claimant's unique set of symptoms and an extraschedular
rating may be approved by the Director of the Compensation Service (Director). Id.
"The determination of whether a claimant is entitled to an extraschedular rating . . . is a
three-step inquiry." Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki,
572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying
that the three "steps" identified in Thun are necessary "elements" of an extraschedular rating
analysis). The first step in the inquiry is to determine whether "the evidence before VA presents
such an exceptional disability picture that the available schedular evaluations for that
service-connected disability are inadequate." Thun, 22 Vet. App. at 115. "[I]nitially, there must be
a comparison between the level of severity and symptomatology of the claimant's
service-connected disability with the established criteria found in the rating schedule for that
disability." Id. If the adjudicator determines that the available schedular ratings are inadequate, the
10
The Court notes that, effective February 19, 2019, VA made minor changes to § 3.321 to comply with the
appeals processing changes mandated by VAIMA, Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 2017). See
84 Fed. Reg. at 170; 84 Fed. Reg. at 2449.
19
second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional
disability picture exhibits other related factors," such as marked interference with employment or
frequent periods of hospitalization. Id. at 116. Then, if the first two steps have been satisfied, the
adjudicator must refer the claim to the Director for a determination of whether an extraschedular
rating is warranted. Id.
The Board reviews the Director's extraschedular decision de novo and, as with any material
issue of fact or law, the Board must provide an adequate statement of reasons or bases for its
determination. See Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015); Allday, 7 Vet. App. at
527. Here, the Board determined that an extraschedular rating was not warranted based on its
finding that Thun steps 1 and 2 were not met. R. at 30-36. The Board also found that the collective
impact of the appellant's obesity, exacerbation of cardiovascular symptoms, and other
manifestations of his service-connected upper extremity disabilities did not collectively show that
an extraschedular rating was warranted. R. at 33-35.
As an initial matter, the Court notes that the possibility of entitlement to an extraschedular
disability rating on a collective basis has been eliminated by the 2017 amendment to 38 C.F.R.
§ 3.321(b)(1), which the Court in Thurlow v. Wilkie found does not have an impermissible
retroactive effect. 30 Vet. App. 231, 239-40 (2018). Accordingly, the revised amendment applies,
and any error by the Board in this case in assessing entitlement to an extraschedular rating on a
collective basis is harmless, as that benefit is "no longer supported in law." Id.; see 38 U.S.C.
§ 7261(b)(2); Sanders, 556 U.S. at 409.
To the extent that the appellant seeks an extraschedular rating for his service-connected
upper extremities alone, and assuming that the bilateral upper extremity disabilities may be
considered a "single service-connected disability," 38 C.F.R. § 3.321(b)(1), the Court concludes
that he fails to demonstrate prejudicial error. In this regard, the appellant relies on a VA General
Counsel Precedent Opinion, which held that, if "obesity resulting from a service-connected disease
or injury is found to produce impairment beyond that contemplated by the applicable provisions
of VA's rating schedule, VA may consider an extra[]schedular rating . . . for the service-connected
condition," VA Gen. Coun. Prec. 1-2017 at 1 (Jan. 6, 2017), and argues that the Board
impermissibly relied on its own medical determination to find that his upper extremity disabilities
did not cause his obesity, Appellant's Br. at 13-14. However, even assuming that the Board erred
in this respect, as the Secretary points out, the appellant does not raise any arguments challenging
20
the Board's finding that the evidence failed to establish that Thun step 2 was met, nor does he
respond to the Secretary's assertion in his reply brief. See Yancy v. McDonald, 27 Vet. App. 484,
494-95 (2016) ("[A]n error with respect to one [Thun] element does not necessarily affect the
Board's analysis of the other element. If either element is not met, then referral for extraschedular
consideration is not appropriate."); Secretary's Br. at 21-23; Appellant's Br. at 13-16; Reply Br. at
11-13.11 Accordingly, he has not met his burden of demonstrating prejudicial error. See 38 U.S.C.
§ 7261(b)(2); Sanders, 556 U.S. at 409.
III. CONCLUSION
The appeal of the Board's September 26, 2017, decision declining to exercise jurisdiction
over the matter of entitlement to TDIU after August 31, 2011, and a new claim for entitlement to
disability compensation for ED as secondary to the appellant's service-connected disabilities is
DISMISSED. After consideration of the parties' pleadings and a review of the record, the portions
of the Board's decision implicitly determining that it lacked jurisdiction over the matters of
entitlement to SMC(k) and to TDIU prior to March 4, 2005, are REVERSED and the matters are
REMANDED for further proceedings consistent with this decision. The portion of the Board's
decision denying entitlement to increased initial disability ratings for the upper extremities is
AFFIRMED.
11
Because the appellant fails to assert error in the Board's Thun step 2 analysis, the Court need not address
his additional argument that remand is warranted for the Board to obtain a medical examination evaluating the
relationship between his obesity and upper extremity disabilities. See Appellant's Br. at 15.
21