Hank M. Smiddy v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-2333

HANK M. SMIDDY, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided May 28, 2020)

Amy F. Odom and Barton F. Stichman, both of Washington, D.C., and James D. Arden,

of New York, New York, were on the brief for the appellant.

Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; Carolyn F.

Washington, Deputy Chief Counsel; and Laura R. Braden, all of Washington, D.C., were on the

brief for the appellee.

Before PIETSCH, GREENBERG, and MEREDITH, Judges.

PIETSCH, Judge: The appellant, Hank M. Smiddy, appeals through counsel a March 17,

2016, Board of Veterans' Appeals (Board) decision that denied a disability rating higher than 10%,

on an extraschedular basis, for status post left inguinal hernia repair with ilioinguinal nerve

entrapment (inguinal hernia repair residuals). Record (R.) at 2-19. 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 case concerns the legal analysis that the Board conducts after receiving an extraschedular

decision from the director of the Compensation Service (Director) under 38 C.F.R. § 3.321(b)(1)

(2015).

On January 19, 2018, the Court submitted this matter to a panel for consideration. On

March 12, 2018, the Court received the parties' supplemental briefs. The following month, the

appellant filed a motion for oral argument, which the Secretary opposed. The Court concludes

that oral argument will not materially assist its deliberations. See O'Brien v. Wilkie, 30 Vet.App.

21, 24 (2018). The appellant's motion is therefore denied.

For the reasons that follow, the Court will vacate the Board's March 17, 2016, decision and

will remand the matter for further proceedings consistent with this decision.

I. BACKGROUND

The appellant served in the U.S. Army from October 1991 to September 1995. R. at

3084-86, 1439. During service, he underwent a left inguinal hernia repair, which resulted in nerve

entrapment. R. at 1448, 1725. In a March 2004 rating decision, the Nashville, Tennessee, VA

regional office (RO) awarded service connection for inguinal hernia repair residuals and assigned

a 10% disability rating effective June 1998. R. at 2958-61.

In January 2005, the appellant filed an increased-rating claim for this disability. R. at

2953-54. In a July 13, 2005, rating decision, the RO denied entitlement to a higher rating, noting

that the appellant's 10% rating was the maximum schedular evaluation possible under the

applicable diagnostic code (DC). R. at 2786-93 (assigning a hyphenated disability rating under

38 C.F.R. §§ 4.114, DC 7338 (inguinal hernia) (2006), 4.124a, DC 8730 (neuralgia of ilio-inguinal

nerve) (2006)). The RO also declined to refer the case for extraschedular consideration. Id. The

appellant submitted a Notice of Disagreement the following month, R. at 2776, and VA issued a

Statement of the Case in May 2006 that continued the 10% schedular disability rating and denied

extraschedular referral, R. at 2743-60. The appellant perfected his appeal in June 2006. R. at

2729-30.

In August 2010, the Board remanded the appellant's claim for a new VA examination "to

address the current nature and etiology of [the appellant's] chronic left inguinal hernia repair

residuals, left ilioinguinal nerve entrapment, and erectile dysfunction." R. at 2635. The appellant

underwent the VA examination in January 2011, R. at 5, but the Board again remanded the case

in August 2012, finding that the January 2011 VA examination had not complied with the Board's

August 2010 remand instructions, R. at 2558-59.

The appellant underwent a new VA examination in September 2012. R. at 2489-518. The

examiner did not detect a hernia on physical examination and found no conditions calling for a

supporting belt. R. at 2491. The examiner diagnosed the appellant with moderate sensory

neuropathy of the left ilioinguinal nerve. R. at 2510. He noted that the hernia affected the

appellant's ability to work, and that the pain from the corresponding peripheral nerve condition

was "worsened by walking, squatting, and lifting at work," such that it "caused him to work longer

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hours . . . since the pain [] slow[ed] him down." R. at 2493, 2509-10. The examiner also found

that the appellant could not "wear tight fitting clothing since the touch of the clothing [] cause[d]

pain in [his] thigh." R. at 2510. The examiner further found that the appellant had a voiding

dysfunction, and that the etiology of the voiding dysfunction was the inguinal hernia repair

surgery. R. at 2511.

In July 2013, the Board requested that a Veterans Health Administration (VHA) medical

expert opine on two questions: (1) What current disabilities were associated with the appellant's

left inguinal hernia repair residuals with ilioinguinal nerve entrapment? and (2) whether the

appellant's voiding dysfunction with urinary leakage was a symptom of his service-connected

disability? R. at 2149. The following month, a VHA medical expert opined that the appellant's

chronic left testicular discomfort and left thigh numbness should not interfere with employment,

and that it was "highly unlikely" that his urological complaints were associated with his

ilioinguinal nerve entrapment, given that the ilioinguinal nerve "is a peripheral nerve and not

associated with voiding function." R. at 2116-17.

In an April 2014 decision, the Board denied the appellant's claim for a schedular rating

greater than 10% for inguinal hernia repair residuals. R. at 1969-73. However, the Board

determined that "the unusual or exceptional disability picture associated with the [appellant's] left

inguinal nerve entrapment render[ed] the schedular criteria under 38 C.F.R. §§ 4.123, 4.124a

Diagnostic Code 8530, 86[3]0 inadequate," and that "[t]he [appellant's] clinical records and written

statements on appeal reflect significant impairment of his occupational and social activities not

represented by the current 10 percent evaluation." R. at 1974. The Board concluded that the

appellant's inguinal hernia repair residuals presented "an exceptional disability picture" and,

accordingly, referred the claim to the Director for extraschedular consideration. Id.

In August 2015, the appellant submitted to VA a request for a total disability rating based

on individual unemployability (TDIU). R. at 1318-19. He identified the conditions preventing a

gainful occupation as his knees, ankles, arthritis, and kidney stones. R. at 1318; see R. at 1316-17.

In October 2015, the Director issued a decision denying an extraschedular rating for the

appellant's inguinal hernia repair residuals. R. at 1269-70. The Director stated:

[A]part from the objective evidence confirming the 10% evaluation

currently entitled to and other subjective evidence[,] such as the [appellant]

indicating that his scar has caused him discomfort so that he can't wear tight

fitting clothing, has affected his sexual activity, and it's slowed him down

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at work[,] no further evidence of an unusual disability picture such as

frequent hospitalizations or of marked interference with employment have

been presented.

R. at 1269. The Director also reasoned that the objective medical evidence of record suggested

that the 10% schedular evaluation was adequate, that the appellant had continued to work full-

time, and that the various medical opinions had found that the appellant's disability should not

prevent him from maintaining gainful employment. Id. The Director also noted that the appellant

was already service connected for erectile dysfunction. Id.

In its March 2016 decision we consider here on appeal, the Board determined that an

extraschedular rating for inguinal hernia repair residuals was not warranted. R. at 2-19. The Board

found that the evidence of record was against a finding that the appellant's inguinal hernia repair

residuals presented "such an exceptional or unusual disability picture that the available schedular

evaluations are inadequate." R. at 17-18 (citing Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd

sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009)). Specifically, the Board found that

the manifestations of the appellant's disability included "pain and discomfort at the left testicle and

thigh, in addition to left thigh numbness," and that "[t]hese manifestations [were] fully

contemplated by the rating criteria for neuralgia of the ilioinguinal nerve." R. at 18. Additionally,

the Board determined that, although the appellant "assert[ed] his disability has worsened due to

urinary symptomatology, competent medical evidence of record indicates that [his] voiding

dysfunction with urinary leakage is not a symptom of his left inguinal hernia repair residuals."

R. at 8. The Board also found "no evidence of unusual factors such as frequent hospitalizations or

marked interference with employment stemming from the [appellant's] inguinal hernia repair

residuals." R. at 18. In reaching this conclusion, the Board stated that it had no reason to doubt

the appellant's reports of slowed work performance due to pain from his inguinal hernia repair

residuals, but that "slower performance alone does not comprise [sic] marked interference with

employment" and that in his TDIU request he "did not attribute his inability to work to his hernia

repair residuals." R. at 17. The Board thus concluded that an extraschedular rating was not

warranted. R. at 17-18. This appeal followed.

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II. THE PARTIES' ARGUMENTS

The appellant argues that, in its 2016 decision, the Board provided an inadequate statement

of reasons or bases because the Board failed to explain why it revisited and reversed its 2014

referral findings. Appellant's Brief (Br.) at 9-17; Reply Br. at 1-5. He also asserts that, even if the

Board were permitted to reverse its prior factual findings, it nonetheless failed to adequately

explain its conclusion denying an extraschedular rating. Appellant's Br. at 18-25; Reply Br. at 6-8.

The appellant also contends that the Board erred when it conflated its "marked interference with

employment" analysis with a "total disability" analysis, and offered no legal basis or explanation

for concluding that slower work performance alone does not constitute marked interference with

employment. Appellant's Br. at 23-24; Reply Br. at 7-8. He also argues that the Board failed to

adequately explain its determination that his genitourinary symptoms were not related to his

inguinal hernia repair residuals. Appellant's Br. at 25-27; Reply Br. at 9-11. Finally, the appellant

asserts that remand is required because it is not possible to determine whether the outcome of this

case would have been different if the Board had corrected the errors and deficiencies in its decision.

Reply Br. at 5.

The Secretary avers that the Board provided adequate reasons or bases for denying an

extraschedular rating and was not obligated to more specifically address its provisional factual

findings supporting the 2014 referral. Secretary's Br. at 9-14. He also argues that the appellant

was not prejudiced by any error in the Board's extraschedular analysis. Id. at 14-20. Finally, he

contends that the Board did not err in finding that the appellant's genitourinary symptoms were not

related to his inguinal hernia repair residuals. Id. at 20-22.

In February 2018, the Court directed the parties to file supplemental memoranda discussing

several aspects of the Thun framework for establishing entitlement to extraschedular consideration,

particularly the role of the Board when it receives a post-referral decision from the Director. In

response, the appellant asserted that, after the Director makes a decision, the Board should review

the entirety of that decision to "ultimately determine" whether it accords justice to award an

extraschedular rating. Appellant's Supplemental Memorandum (Supp. Memo.) at 3. The appellant

further argued that the Board's factual findings regarding Thun steps 1 and 2 should not differ

between the referral stage and the adjudication stage and, if they do, the Board must explain why.

Id. at 6-8. In that regard, he asserts that the Board's ordinary reasons-or-bases requirement is

heightened when its adjudication decision is different from its referral decision. Id. at 8-10.

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For his part, the Secretary argued that, if after receiving the Director's decision the Board

determines on de novo review that Thun steps 1 and 2 are not met, the Board need not conduct any

analysis under Thun step 3. Secretary's Supp. Memo. at 1-3. If the Board conducts an analysis

under step 3, the Secretary continued, the Board's discussion should focus on whether an

extraschedular rating would be commensurate with the average, rather than actual, impairment of

earning capacity due exclusively to the disability. Id. at 3-4. Next, the Secretary argued, as the

appellant did, that the Board's de novo review of steps 1 and 2 "should not differ depending upon

whether the Board is considering extraschedular referral or adjudication." Id. at 5. Yet the

Secretary asserted that, after the Board receives the Director's decision, the Board should not be

subject to a heightened reasons-or-bases standard when it considers whether an extraschedular

rating is warranted. Id. at 6-7.

III. ANALYSIS

By way of background, on April 16, 2018, the Court submitted Morgan v. Wilkie to the full

Court to address the viability of the extraschedular framework as set out in Thun. 31 Vet.App. 162

(2019). On May 16, 2019, the full Court returned Morgan to a panel of Judges, which issued its

decision without addressing the extraschedular framework, finding the Board's decision unclear as

to whether extraschedular referral had been raised. Id. at 166. The day Morgan issued, the Court

submitted Long v. Wilkie, U.S. Vet.App. No. 16-1537 (oral argument held Aug. 28, 2019), to the

full Court to address the viability of the extraschedular framework. While the Court is considering

the continued viability of the extraschedular framework in Long, the panel determines that the

reasoning and holding of Ray v. Wilkie largely control this appeal and that the panel may proceed

to consider this appeal because the decision is limited to post-referral extraschedular

determinations based on the 2016 regulatory framework. 31 Vet.App. 58 (2019).

A. Extraschedular Evaluations and Standard of Review

VA's schedule of disability ratings is based on the average impairment of earning capacity

in civil occupations from specific injuries or combinations of injuries. 38 U.S.C. § 1155; 38 C.F.R.

§ 3.321(a) (2015). However, "[t]o accord justice[] . . . to the exceptional case where the schedular

evaluations are found to be inadequate, . . . the Director" is authorized to approve an extraschedular

rating "commensurate with the average earning capacity impairment due exclusively to the service

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connected disability or disabilities." 38 C.F.R. § 3.321(b)(1).1 The "governing norm" in these

cases is whether they present "such an exceptional or unusual disability picture with such related

factors as marked interference with employment or frequent periods of hospitalization so as to

render impractical the application of the regular schedular standards." Id.

In Thun, the Court set forth the "three-step inquiry" for determining whether a claimant is

entitled to an extraschedular rating under § 3.321(b)(1). 22 Vet.App. at 115-16; see Anderson v.

Shinseki, 22 Vet.App. 423, 427 (2009) (clarifying that the "steps" described in Thun "are, in fact,

elements that must be established before an extraschedular rating can be awarded"). First, either

the RO or the Board must find "that 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. This step requires "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 schedular evaluation does not

contemplate the claimant's level of disability and symptomatology and is found inadequate," the

second step of Thun provides that "the RO or Board must determine whether the claimant's

exceptional disability picture exhibits other related factors such as those provided by the regulation

as 'governing norms,'" such as "marked interference with employment" and "frequent periods of

hospitalization." Id. (citing 38 C.F.R. § 3.321(b)(1) (2007)). Finally, if the criteria under the first

two steps are satisfied, "then the case must be referred to the [Director] for completion of the third

step—a determination of whether, to accord justice, the claimant's disability picture requires the

assignment of an extraschedular rating." Id.

The Board's extraschedular referral decision, as well as the ultimate determination of

whether an extraschedular rating is appropriate, are factual determinations that the Court reviews

under the "clearly erroneous" standard of review. Ray, 31 Vet.App. at 65 (stating that if the

"Board's referral[s] [for extraschedular consideration] denials are factual decisions . . . [w]e can

think of no principled reasons why . . . a decision to refer a claim [for extraschedular consideration]

is not [a factual decision]" (emphasis added)); Pederson v. McDonald, 27 Vet.App. 276, 286

(2015) (en banc) (noting that the Board's decision not to refer a claim for extraschedular

1

Effective January 8, 2018, VA amended § 3.321(b)(1) to prohibit extraschedular consideration based on the

combined effects of more than one service-connected disability. See Department of Veterans Affairs, Extra-Schedular

Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830 (Dec. 8, 2017); see also Thurlow v. Wilkie, 30 Vet.App.

231, 238-40 (2018).

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consideration is based on several factual determinations); Thun, 22 Vet.App. at 115. As with any

finding on a material issue of fact and law presented on the record, the Board must support its

determination with an adequate statement of reasons or bases that enables the claimant to

understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C.

§ 7104(d)(1); Thun, 22 Vet.App. at 115; Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.

Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze

the credibility and probative value of evidence, account for evidence it finds persuasive or

unpersuasive, and provide reasons for rejecting material evidence favorable to the claimant.

Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)

(table).

B. Post-Referral Analysis

1. Law

In Anderson, a decision review officer (DRO) referred the case to the Director to determine

whether an extraschedular rating was warranted. The Director denied an extraschedular rating and

the Board agreed with the Director's denial. 22 Vet.App. at 424-25. On appeal, the Court rejected

the appellant's argument elevating the analysis under each Thun element into a separate final

decision that was binding on the Director and the Board. Id. at 427. Instead, the Court held that

the Board was permitted to review the DRO's and Director's findings, and that the Board "has

jurisdiction to review whether the decision not to award an extraschedular rating was appropriate

under all three elements set forth in Thun." Id. at 428. The Court also clarified that "the [referral]

analysis performed by the RO or Board is done for the limited purpose of determining whether

referral of the matter for extraschedular consideration is warranted[,] [but] [t]he actual review of

the matter and approval of an extraschedular rating is done for the first time by the Director . . . ."

Id. (citations omitted).

There is no dispute over Anderson's holding that the extraschedular referral determinations

are not binding on the actual extraschedular adjudication; however, the present case differs in one

key respect: Here, the Board was reviewing not the DRO's referral findings, but its own referral

findings. And, although Anderson distinguished between the "limited purpose" of the referral

analysis and the "actual review of the matter and approval of an extraschedular rating" performed

for the first time by the Director, the Court did not clarify whether the Board's post-referral analysis

of its own referral findings necessarily required a re-evaluation of Thun elements 1 and 2.

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Accordingly, this case presents the following question: How does the Board's review of Thun

elements 1 and 2 at the adjudication stage differ from its review at the referral stage?

In Wages v. McDonald, the Court held that the Director's opinion was not evidence that the

Board could use in its post-referral decision. 27 Vet.App. 233, 239 (2015) (per curiam). Rather,

the Director's decision was a decision adopted by the RO and reviewed by the Board de novo. Id.

Under Thun, following referral, the Director and the Board must determine "whether, to accord

justice, the claimant's disability picture requires the assignment of an extraschedular rating."

22 Vet.App. at 115. Although this Court has held that extraschedular determinations are capable

of judicial review, Kuppamala v. McDonald, 27 Vet.App. 447, 457 (2015), neither § 3.321 nor

Thun provides any concrete test or guidance for the Court to apply when reviewing the Board's

extraschedular decision, aside from the first two elements described at the referral stage. For

guidance as to what the Board must do in the absence of any other specified test at the post-referral

stage, the Court turns to its recent precedent in Ray, as well as the Board's reasons-and-bases

requirement under 38 U.S.C. § 7104(d)(1).

Although Ray addressed the extraschedular referral process in the TDIU context under

38 C.F.R. § 4.16, Ray nonetheless offers compelling logic that also applies in the increased-rating

context under § 3.321. See 31 Vet.App. at 66-67; cf. King v. Shulkin, 29 Vet.App. 174, 178 (2017)

("The goal of the entire rating process is to appropriately compensate veterans. The schedular and

extraschedular analyses are just different means of doing so."); Norris v. West, 12 Vet.App. 413,

420-21 (1999) ("A TDIU rating is not a basis for an award of service connection. Rather, it is

merely an alternate way to obtain a total disability rating without being rated 100% disabled under

the Rating Schedule."). But see Kellar v. Brown, 6 Vet.App. 157, 162 (1994) (noting that

evaluations regarding employability in § 4.16 and interference with employment contained in

§ 3.321(b)(1) are different metrics); Stanton v. Brown, 5 Vet.App. 563, 564-70 (1993) (holding

that the issue of extraschedular rating is separate from the issue of TDIU rating).

In Ray, the Court acknowledged that "the decisions to refer and to award a[n extraschedular

TDIU] rating are fundamentally different" and that a referral decision does not require the Board

to award an extraschedular rating. 31 Vet.App. at 65. The Court explained that to hold otherwise

would make the Director "little more than a rubberstamp." Id. at 64. However, the Court also held

that, because the en banc Court in Pederson held that the Board's referral denials are factual

decisions, it would be logically inconsistent to hold that a decision to refer a claim is not a factual

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decision. Id. at 65. Rather, the Court held that "the initial extraschedular referral decision under

§ 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that

a veteran is unemployable by reason of his or her service-connected disabilities." Id. at 66. And,

whether a "preponderance of the evidence nevertheless shows that a veteran is unemployable by

reason of his or her service-connected disabilities" is the question to answer in the adjudication

stage of assigning an extraschedular disability rating. Id.

The Court also held in Ray that "the Board must ensure that it adequately explains its

reasoning when a factual finding made at the referral stage comes out differently at the review

stage." Id. at 66-67. The Court suggested that the certitude or equivocality of the Board's language

in a referral decision could affect the amount of explanation required where there is deviation at

the award stage. Id. at 67 ("For example, where the Board finds referral appropriate because 'it is

beyond dispute' that a veteran was unemployable because of his service-connected disabilities,

more explanation might be needed for a contrary finding than where the Board's referral finding is

more equivocal."). In Ray, the Court remanded the case to the Board for an adequate statement of

reasons or bases for "its different factual determinations at the referral and review stages." Id.

In the instant case, the Court extends Ray's reasoning and holding in the context of

extraschedular TDIU under § 4.16(b) to the context of extraschedular rating under § 3.321(b). Cf.

Rice v. Shinseki, 22 Vet.App. 447, 453 (2009) (per curiam) ("Because Mr. Rice was challenging

the initial disability rating assigned for the disability upon which he based his assertion of

unemployability . . . the determination of whether he is entitled to TDIU . . . is part and parcel of

the determination of the initial rating for that disability."). The initial extraschedular referral

decision under § 3.321(b) addresses whether there is sufficient evidence to substantiate a

reasonable possibility that "application of the regular schedular standards" is impractical because

the disability is "exceptional or unusual . . . with such related factors as marked interference with

employment or frequent periods of hospitalization." 38 C.F.R. § 3.321(b) (2015); see Thun,

22 Vet.App. at 115-16. Accordingly, the Court holds that, in the extraschedular rating context, the

Board's reasons-or-bases requirement obligates it to "explain[] its reasoning when a factual finding

made at the referral stage comes out differently at the review stage." Ray, 31 Vet.App. at 67.

2. Application to the Facts of this Case

Here, the language of the Board's 2014 referral decision was not equivocal. The Board

found that the

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unusual or exceptional disability picture associated with the [appellant's] left inguinal nerve

entrapment renders the schedular criteria under 38 C.F.R. §§ 4.123, 4124a, Diagnostic

Code[s] 8530, 86[3]0[,] inadequate in the instant appeal. The [appellant's] clinical records

and written statements on appeal reflect significant impairment of his occupational and

social activities not represented by the current 10 percent evaluation. Accordingly, the

Board concludes that [his] left inguinal hernia repair residuals with ilioinguinal nerve

entrapment present an exceptional disability picture which warrants referral to the Under

Secretary for Benefits or the Director of the Compensation and Pension Service for extra-

schedular consideration.

R. at 1974. And little was added to the record following the 2014 referral.2 The Director's opinion

does not count as evidence. See Wages, 27 Vet.App. at 239. The appellant's 2015 TDIU

application, although new, is not necessarily determinative of his increased-rating claim. See

Kellar, 6 Vet.App. at 162 (holding that, because "the effect of a service-connected disability

appears to be measured differently for purposes of extraschedular consideration" and "for purposes

of a TDIU" request, the appellant's claim for extraschedular consideration of his service-connected

condition "is not inextricably intertwined with the TDIU [matter] which has been referred to" the

agency of original jurisdiction). Thus, it is unclear why, on mostly the same facts, the Board

reached opposite conclusions. See Appellant's Br. at 9-14. Although the Board was not bound by

its 2014 referral decision, it did not explain why it had reached an opposite conclusion in its 2016

decision. In the 2016 decision, the Board did not discuss the 2014 referral findings, but simply

noted the referral. To enable the appellant to understand the precise basis for its decision, the

Board must explain why it reached a different result. Here, the appellant believes that, by the

referral in 2014, he received a "yes" to an extraschedular rating, and then in 2016 received a "no,"

although the Board had evaluated the same two Thun factors. Because the Board treated the 2014

and 2016 Thun determinations differently, it must explain why and how they were different. See

Allday, 7 Vet.App. at 527. Its failure to do so frustrates judicial review. See id.; see also 38 U.S.C.

§ 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.

To the extent the Secretary may be asserting that any Board reasons or bases deficiency in

failing to explain its conflicting referral and award determinations is nonprejudicial, the Court

cannot conclude that this error was harmless. In that regard, the Board previously acknowledged

evidence of "significant impairment of [the appellant's] occupational and social activities not

2

After the October 2015 Supplemental Statement of the Case issued, Social Security Administration records,

including private medical records, were placed in the appellant's file and he waived consideration by the RO. R. at 3.

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represented by the current 10 percent evaluation" and provided no explanation in the decision on

appeal as to why that is no longer the case. The Court will not undertake that analysis in the first

instance. See Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (finding prejudice when error

"could have altered" the Board's determinations); see also Hensley v. West, 212 F.3d 1255, 1263

(Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding").

C. Other Reasons-or-Bases Arguments

Given that the Court is remanding the appellant's extraschedular claim, and because the

appellant's additional reasons-or-bases arguments could result in no greater relief, the Court need

not address these arguments. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order)

("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed

errors that would result in a remedy no broader than a remand."); Best v. Principi, 15 Vet.App. 18,

20 (2001) (per curiam order) ("A narrow decision preserves for the appellant an opportunity to

argue those claimed errors before the Board at the readjudication, and, of course, before this Court

in an appeal, should the Board rule against him."). On remand, the appellant is free to submit

additional evidence and argument on the remanded matter, 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). Additionally, the Court has held 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). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring

the Secretary to provide for "expeditious treatment" of claims remanded by the Court).

IV. CONCLUSION

The appellant's motion for oral argument is denied. After consideration of the parties'

briefs, supplemental memoranda, and the record, the Board's March 17, 2016, decision denying a

disability rating greater than 10% on an extraschedular basis for inguinal hernia repair residuals is

VACATED, and the matter is REMANDED for further proceedings consistent with this decision.

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