Walter G. Long v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-1537

WALTER G. LONG, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued August 28, 2019 Decided December 30, 2020)

Jenna E. Zellmer, with whom Shawn D. Murray was on the brief, both of Providence,

Rhode Island, for the appellant.

Ronen Z. Morris, with whom Megan Flanz, Interim General Counsel; Mary Ann Flynn,

Chief Counsel; Kenneth A. Walsh, Deputy Chief Counsel; and Lance P. Steahly, were on the brief,

all of Washington, D.C., for the appellee.

Before BARTLEY, Chief Judge, and PIETSCH, GREENBERG, ALLEN, MEREDITH,

TOTH, and FALVEY, Judges, and DAVIS and SCHOELEN, Senior Judges.1

TOTH, Judge, filed the opinion of the Court. SCHOELEN, Senior Judge, filed an opinion

concurring in the judgment and dissenting in part. MEREDITH, Judge, filed a dissenting opinion,

in which GREENBERG and ALLEN, Judges, joined.

TOTH, Judge: Air Force veteran Walter G. Long appealed the Board's decision not to refer

his noncompensable bilateral hearing loss rating for extraschedular consideration. Specifically, he

claims that the Board erred by not explaining how the diagnostic criteria for hearing loss

contemplated the various symptoms and effects he experienced, including: anxiety and depression,

reduced self-esteem, inability to understand spoken conversations without hearing aids, difficulty

hearing in meetings, and ear pain resulting from his use of hearing aids.

We thank Mr. Long for his patience throughout multiple stays and a lengthy en banc

process; nonetheless, we affirm the Board decision because the symptomatology he presents is not

exceptional, as it is readily capable of evaluation under the relevant diagnostic criteria and

1

Judges Davis and Schoelen are Senior Judges acting in recall status. In re Recall of Retired Judge, U.S.

VET. APP. MISC. ORDER 04-20 (Jan. 2, 2020); In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-20 (Jan.

2, 2020).

available rating tools. Thus, there was no error in the Board's ruling that referral for extraschedular

consideration was not warranted under 38 C.F.R. § 3.321(b)(1).

I. BACKGROUND

Walter G. Long served in the Air Force from 1969 to 1976. R. at 394, 675. He spent much

of that time as an air traffic control radar repairman, working without ear protection in close

proximity to active runways. R. at 675-76. In 2009, he filed a claim for service connection for his

resulting hearing loss. R. at 690. VA granted his claim and assigned a noncompensable rating

based on the results of an audiological examination. R. at 625

He appealed that decision but did not contest that the schedular rating criteria directed a

noncompensable rating; instead, he asked the Board to refer his claim for extraschedular

consideration because he experienced certain functional effects of hearing loss not contemplated

by the schedular rating criteria. R. at 36. Mr. Long asserted that the mechanical nature of the

criteria (essentially audiometric test results applied to rating tables comprised of Roman numeral

values) rendered them inadequate because they failed to account for the functional effects of his

hearing loss.2 R. at 38. These included: anxiety and depression symptoms, decreased self-esteem

and personal satisfaction, problems with speech discrimination not helped by hearing aids,

interference with his ability to work with his students, increased difficulty writing lesson plans and

preparing for classes, and ear pain resulting from the use of hearing aids. See generally R. at 401-

25. Finally, despite undergoing a VA examination, Mr. Long was not diagnosed with a psychiatric

disorder recognized by the fifth edition of the Diagnostic and Statistical Manual of Mental

Disorders (DSM-5) in relation to these complaints.

As to his anxiety and depression symptoms, the Board cited a 2011 VA clinical

psychologist's determination that Mr. Long's mental health issues were less likely than not related

to hearing loss. R. at 501. The psychologist noted that, when discussing his symptoms of

depression, the veteran did not mention hearing loss but consistently referred to marital and

interpersonal difficulties, alcoholism, and a family history of mental health issues that made him

2

Our prior decisions have explained in detail how the rating criteria for hearing loss operate, and so we need

not do so here again at length. See, e.g., Rossy v. Shulkin, 29 Vet.App. 142, 144 (2017); Doucette v. Shulkin,

28 Vet.App. 366, 368 (2017). In short, the rating criteria are characterized as mechanical because, instead of listing

symptoms, results of audiometric tests are applied to rating tables comprised primarily of Roman numeral values. See

generally 38 C.F.R. §§ 4.85and 4.86 (2020).

2

vulnerable to psychiatric manifestations as an adult. Id. The Board found Mr. Long not competent

as a lay person to offer a competing opinion as to the etiology of his depression and anxiety. R. at

7. On balance, the Board found that the medical evidence did not otherwise support such a

connection. It also noted that he never appealed earlier decisions in which VA denied service

connection for these conditions, including as secondary to hearing loss. Id.

As to speech discrimination, the Board noted that hearing loss evaluations hinge "on a

mechanical application of specifically defined regulatory standards" and that it was clear that the

need to wear hearing aids was simply "not a factor in the evaluation for hearing impairment" under

such criteria. R. at 7.

For his work-related difficulties, the Board noted Mr. Long's ability to work with students,

write lesson plans, and prepare for classes. R. at 8. It found that both VA examiners fulfilled their

duty to "fully describe the functional effects caused by a hearing disability" beyond merely noting

the results of the hearing test. Id.; see Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007)

(outlining examiners' duties). To that end, the 2009 VA examiner noted that people had to repeat

themselves to Mr. Long and that he had difficulty in meetings, while the 2014 VA examiner

concluded that he needed hearing aids but would not be otherwise limited in the work environment.

R. at 121, 389. The Board also considered whether the 2011 private examiner included any such

information but found only a notation that Mr. Long's hearing had decreased since his last

evaluation. R. at 8.

Ultimately, the Board concluded that the evidence did not present an unusual or exceptional

disability picture because the rating criteria reasonably described his disability level and

symptomatology. R. at 9. It found no indication that he lost considerable time at work or

experienced frequent hospitalization due to his hearing loss. Id. Further, any interference with his

ability to work with his students or prepare lesson plans was proportional to the severity of his

hearing loss. Id. Thus, the Board found that application of the regular schedular standards was not

impractical and referral for further consideration was not warranted. Id.

II. ANALYSIS

The Board's findings that the veteran has not presented an exceptional disability picture

because the rating criteria reasonably described his disability level and symptomatology are factual

determinations reviewed under the "clearly erroneous" standard of review. See Chudy v. O'Rourke,

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30 Vet.App. 34, 38 (2018); see also Kuppamala v. McDonald, 27 Vet.App. 447, 454 (2015)

(characterizing the Director of Compensation's assessment as a "fact-driven analysis"). A finding

is "clearly erroneous" when, although there is evidence to support it, the Court is convinced on

review of the entire evidence that a mistake has been made. Miller v. Wilkie, 32 Vet.App. 249, 254

(2020).

A. Exceptionality and Extraschedular Analysis

To warrant referral for extraschedular consideration, a disability must be so exceptional or

unusual that it renders application of the regular schedular ratings impractical.

38 C.F.R. § 3.321(b)(1) (2020). By its very nature, an "exceptional" or "unusual" disability defies

easy classification, and so it has been an enduring challenge to fashion a standard sufficiently

flexible to allow for individualized consideration of truly unusual impairments but not so

expansive as to effectively discard the "exceptionality" requirement. In Thun v. Peake, 22 Vet.App.

111, 115 (2008), we spelled out a general standard for determining whether a veteran's disability

is exceptional or unusual under § 3.321(b)(1). Known as Thun's "first step," it requires adjudicators

to compare "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

criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's

disability picture is contemplated by the rating schedule" and the schedular evaluation is adequate

and "no referral is required." Id.

Significantly, we have consistently declined to treat Thun's first step as a mechanical test

that is satisfied whenever a veteran presents a symptom not expressly listed in the diagnostic code.

This makes sense, as Thun sought merely to interpret what § 3.321(b)(1) means by "exceptional"

cases; it never intended to displace the regulation with a more lenient, court-created, standard

whereby anything not expressly listed in a diagnostic code is automatically deemed exceptional.

Thus, in Doucette v. Shulkin, 28 Vet.App. 366, 369 (2016), we held that the rating criteria

for hearing loss contemplated symptomatology (i.e., the full range of symptoms) related to

decreased hearing, even though the diagnostic code failed to list any symptoms but relied solely

on audiometric tests. Further, the Court expressly rejected the same line of argument Mr. Long

raises here, namely that the mere absence of alleged symptoms and effects from the diagnostic

criteria suffices to satisfy Thun's first step. In rejecting this argument, Doucette cautioned that

reading Thun's first step too rigidly would have the adverse effect of requiring the Board to engage

4

in extraschedular analysis in all hearing loss cases, a result directly at odds with the stated intent

of the rating criteria—to compensate veterans for the average loss of earnings capacity that results

from a disability. Id at 371.

Here, we break no new ground in holding that exceptionality remains the touchstone in

determining whether extraschedular consideration is warranted under § 3.321(b)(1) and that Thun's

first step is satisfied only when a veteran presents symptoms that are truly unusual or exceptional.

Further, because the determination of whether a veteran presents exceptional symptomatology is,

by nature, fact-bound and highly contextual, Thun's first step should be approached as a totality of

the factors inquiry rather than as a mechanical formula. Properly framed, Thun's first step centers

on whether the veteran's disability picture as a whole—that is, the full symptomatology—presents

an impairment that is so exceptional that the rating schedule is not capable of assessing it in the

first instance. This inquiry is not reducible to a mere comparison between symptoms and the

diagnostic criteria but requires a reasoned assessment of both the veteran's full disability picture

and the capacity of the rating schedule to evaluate such.

This is the exact approach we took in Doucette. There, rather than engaging in a line-item

accounting of each symptom and effect as compared to the diagnostic criteria, we based our ruling

on the common-sense observation that a diagnostic code designed to assess hearing loss

necessarily contemplates those symptoms and effects commonly associated with such.

Nonetheless, we cautioned against an overly broad reading that would foreclose extraschedular

relief where the veteran did, in fact, present exceptional symptoms. For demonstrative purposes,

we listed examples of symptoms that may prove exceptional in certain cases. Doucette,

28 Vet.App. at 371.

Doucette thus employed no magic formula in concluding that the diagnostic criteria for

hearing loss contemplated the veteran's symptomatology and so failed to satisfy Thun's first step;

instead, the Court considered the veteran's full disability picture and drew reasonable inferences

about the ability of the rating criteria to evaluate it. Because the veteran's various complaints were

"precisely the effects that VA's audiometric tests are designed to measure," id. at 369, they could

not be deemed exceptional.

B. Some Factors for Consideration

While we reemphasize that Thun's first step operates as a broad, totality-of-factors inquiry,

we nonetheless offer some guiding principles, gleaned from various decisions of this Court and

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the Federal Circuit, that sharpen the focus as to how to recognize whether symptomatology is

exceptional under § 3.321(b)(1). We offer this guidance with a note of caution, that the following

is not an exhaustive list of mandatory factors but should be considered as guiding considerations

in determining whether a veteran's symptomatology is "exceptional" under Thun's first step.

First, the sole focus of Thun's first step is on the ability of the rating schedule to evaluate

any impairment manifested by the veteran's symptomology. Thus, a veteran's symptomology is

exceptional under 38 C.F.R. § 3.321(b)(1) when it is of such nature or severity that conventional

rating tools are not adequate to evaluate it properly. Extraschedular consideration is simply not

applicable to claims that are evaluated properly but ultimately denied under the schedular ratings;

it applies only after conventional rating tools prove inadequate to evaluate a veteran's

symptomatology in the first place due to its exceptional nature. Thus, the "rating schedule must be

deemed inadequate before extraschedular consideration is warranted." Sowers v. McDonald,

27 Vet.App. 472, 478 (2016) (emphasis added).

For this reason, we held in Morgan v. Wilkie, 31 Vet.App. 162, 168 (2019), that

extraschedular consideration is appropriate only after the agency has exhausted all other tools for

a disability rating, whether direct, secondary, or analogous ratings. We noted that focusing "on the

full scope of schedular rating devices will significantly reduce the need to address extraschedular

referral, reserving it for those cases that are truly 'exceptional.'" Id. As such, "exceptionality"—as

interpreted via Thun's first step—must be viewed in the context of all available rating tools and

cannot be reduced to a mere comparison of a veteran's symptomatology with the language of a

particular diagnostic code. See, e.g., Spellers v. Wilkie, 30 Vet.App. 211, 218 (2018). A symptom

cannot be deemed exceptional (and so satisfy Thun's first step) where it is capable of evaluation

by conventional rating means.

Second, as the basis of any disability evaluation, functional impairments serve as the

operative focus of Thun's first step. See 38 C.F.R. § 4.10 (2020). In Saunders v. Wilkie, 886 F.3d

1356, 1362 (Fed. Cir. 2018), the Federal Circuit noted that in veterans law, the "term 'disability'

refers to a condition that impairs normal functioning and reduces earning capacity." By contrast,

the term "functional effects" pertains to an examiner's obligation to describe a veteran's disability

picture in full, and that term has never carried a central role within VA's compensation system—

as evidenced by its absence from statute or regulation. See Martinak, 21 Vet.App. at 455

(discussing the duties of examiners conducting hearing evaluations).

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For this reason, we echo our earlier precedent treating functional effects as relevant to

Thun's second step, which examines whether the veteran's exceptional symptomatology causes

"marked interference with employment," "frequent periods of hospitalization," or other related

factors. § 3.321(b)(1). Underscoring the distinction between symptoms and effects, we noted in

Yancy v. McDonald that "the first Thun element compares a claimant's symptoms to the rating

criteria, while the second addresses the resulting effects of those symptoms." 27 Vet.App. 484,

494 (2016). Likewise, in Thun we noted that evidence of a claimant's lost income "might be

relevant" to the second step "but unequivocally is not part of" the first step. 22 Vet.App. at 117

n.3; see also Anderson v. Shinseki, 22 Vet.App. 423, 429 n.2 (2009) (noting that the "loss of

hypothetical employment advancement opportunities and an inability to work . . . have little

relevance to the threshold inquiry into the adequacy of the rating schedule.").

Third, we draw attention to our recent holding in Martinez-Bodon v. Wilkie, 32 Vet.App.

393, 404 (2020), that a valid DSM-5 diagnosis is required to compensate a psychiatric disability.

Thus, a veteran's complaints about various psychological or emotional difficulties that may be

associated with a separate disability generally would not constitute a valid diagnosis of a mental

health disorder. This applies equally in contexts where a veteran seeks referral for extraschedular

consideration to obtain an increased rating for an existing service-connected disability. Whether a

symptom or impairment is compensable under the rating schedule is a different inquiry than

whether a service-connected condition is adequately compensated. Accordingly, where alleged

psychological conditions are not compensable in the first instance due to the lack a formal

diagnosis, they do not warrant extraschedular consideration as this would amount to a backdoor

means to obtaining compensation for conditions the rating schedule intends to exclude.

Fourth, extraschedular consideration does not provide an exception to the rule that a

disability is not compensable if it "cannot be attributed to an 'injury' or a 'disease' incurred or

aggravated in the line of duty." Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003) (discussing

38 U.S.C. §§ 1110 and 1131). Extraschedular ratings are no different from their schedular

counterparts insofar as they are "meant to compensate only service-connected disabilities."

Langdon v. Wilkie, 32 Vet.App. 291, 298 (2020). Thus, consideration is not warranted for

downstream effects that clearly lack a requisite and legally recognized nexus to service or to a

service-connected disability.

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Fifth, the Board need only discuss "possible schedular alternatives for rating a disability"

if they are "raised by the claimant or reasonably raised by the record." Morgan, 31 Vet.App. at

168. The requirement to assess whether a veteran's symptomatology is exceptional does not require

it "to raise and reject 'all possible' theories of entitlement." Robinson v. Peake, 21 Vet.App. 545,

553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2008). Extraschedular

consideration requires a reasoned assessment of the veteran's disability picture in its full

complexity; it is not an impossible quest to uncover matters only hinted at by the record. See id. at

555 ("It is impractical to require the Board to explicitly mention every prior medical record noting

any type of symptom and state that there is no evidence that the symptom is directly connected to

the current condition.").

Finally, as a creature of regulation, extraschedular consideration does not provide an

exception to the court's duty under 38 U.S.C. § 7261(c)(2) to "take due account of the rule of

prejudicial error." See Simmons v. Wilkie, 30 Vet.App. 267, 279 (2018). For example, in Payne v.

Wilkie, 31 Vet.App. 373, 394 (2019), we held that a veteran who failed to raise an argument that

Thun's second step was met failed to demonstrate prejudice from any error in the Board decision.

Thus, a failure on the Board's part to discuss whether extraschedular consideration is warranted

for a given symptom does not require an automatic remand.

C. Mr. Long's Case

At last, we turn to Mr. Long's case. He alleges that the diagnostic criteria for hearing loss

fail to account for his varied symptoms and effects, including: anxiety and depression symptoms;

decreased self-esteem and personal satisfaction, problems with speech discrimination not helped

by hearing aids, interference with his ability to work with his students, increased difficulty writing

lesson plans and preparing for classes, and ear pain resulting from the use of hearing aids. See

generally R. at 401-25.

As already discussed, in Doucette we held that "the rating criteria for hearing loss

contemplate the functional effects of decreased hearing and difficulty understanding speech in an

everyday work environment, as these are precisely the effects that VA's audiometric tests are

designed to measure." 28 Vet.App. at 369. Doucette issued after briefing began in this case, and

Mr. Long concedes that its holding applies to some of his symptoms—namely his limited ability

to hear the television or conversation without hearing aids or to understand speech in the presence

of background noise. Reply Br. at 1-2.

8

Because Mr. Long's hearing-related symptoms are clearly covered by Doucette, we find no

error in the Board's ruling that the rating criteria for hearing loss contemplated such issues.

At the heart of this case is his remaining contention, that the Board was required to explain

how the mechanical nature of the rating criteria for hearing loss contemplate the various functional

effects that he experiences beyond the "inability to hear or understand speech or to hear other

sounds in various contexts." Doucette, 28 Vet.App. at 369. These effects, per the veteran, include

difficulty establishing and keeping relationships, reduced self-esteem and personal satisfaction,

and various work-related difficulties such as interacting with students and writing lesson plans. He

contends that the "Court explicitly placed such effects outside the subset of 'functional effects of

difficulty hearing and understanding speech' that the rating criteria contemplate." Reply Br. at 2

(quoting Doucette, 28 Vet.App. at 371).

1. Reduced Self-esteem and Personal Satisfaction

Insofar as his complaints of reduced self-esteem and social impairment suggest psychiatric

disabilities, there's no indication, let alone argument, that these conditions cannot be adequately

evaluated under VA's General Rating Formula for Mental Disorders. That rating formula expressly

contemplates, among other things, "social impairment." 38 C.F.R. § 4.130 (2020). As we stated

clearly above, a disability cannot be deemed exceptional where it is capable of evaluation by

conventional rating means.

What's more, there is nothing in the record to suggest that Mr. Long's self-esteem-related

allegations comprise a mental disability warranting compensation. If the requirement to show a

valid DSM-5 diagnosis is an obstacle to compensation, see Martinez-Bodon, 32 Vet.App. at 404,

extraschedular compensation for hearing loss (or any other service-connected disability) is not a

path around it. The Board did not err in declining to consider whether extraschedular consideration

was warranted for those conditions.

2. Anxiety and Depression

The same result applies to Mr. Long's arguments regarding anxiety and depression. He

does not take issue with the Board's finding that the only competent and probative medical

evidence of record attributed these conditions to marital and interpersonal difficulties, alcoholism,

and a family history of mental health issues—not to hearing loss. Nor does he suggest that his

alleged anxiety and depression were not capable of evaluation under the diagnostic codes relevant

to mental disabilities. See, e.g., 38 C.F.R. § 4.130, Diagnostic Codes 9413 (unspecified anxiety

9

disorder) and 9435 (unspecified depressive disorder). Indeed, these are recognized disabilities with

their own diagnostic codes and well-established means for compensation, and the Board noted that

VA had already evaluated his anxiety and depression separately under the appropriate schedular

rating criteria for these disabilities. See R. at 452–53 (2011 rating decision denying service

connection for anxiety and depression).

Again, where a disability proves capable of evaluation by conventional means, it cannot be

deemed exceptional. And the mere fact that Mr. Long's conditions were not, according to VA's

initial determination, recognized as compensable under the criteria specifically designed to

evaluate psychiatric disorders is not enough to trigger extraschedular consideration.

Additionally, there is no evidence linking his anxiety and depression to his hearing loss.

He never described these impairments within the context of hearing loss, nor did any examiner

associate them with his hearing loss. In King v. Shulkin, 29 Vet.App. 174, 182 (2017), we noted

that, even where the Board erred in determining what an individual rating contemplated, any such

error would be harmless where there was no linkage between the alleged complaint and an

underlying disability. The same applies here: absent evidence of a link between Mr. Long's anxiety

and depression and his underlying hearing loss, he cannot demonstrate error in the Board's

determination that such symptoms failed to warrant extraschedular consideration.

3. Ear Pain

Likewise, Mr. Long's challenge to the Board's findings regarding ear pain falters due to a

lack of linkage between the complaint and his hearing loss. He consistently attributed his ear pain

to his use of hearing aids and not to hearing loss. R. at 421. He testified to this effect at his Board

hearing. Id. And at no point has he shown competent evidence associating his pain with his hearing

loss. Without sufficient evidence that the alleged unusual functional impairment is attributed to

the underlying service-connected disability, extraschedular consideration is foreclosed.

B. Thun's Second Step

While our discussion of Thun's first step resolves Mr. Long's allegations, we note that he

could not prevail without satisfying Thun's second step: whether the "veteran's disability picture

evinces related factors such as marked interference with employment or frequent periods of

hospitalization," Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 927 F.3d

1263, 1265 (Fed. Cir. 2019) (quotes omitted).

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Mr. Long's brief focused exclusively on Thun's first step, namely whether the diagnostic

criteria for hearing loss contemplated the various symptoms and effects he alleged. He did not

challenge any findings related to Thun's second step. Failing to raise such a challenge is, as we've

said, fatal to his appeal. See Payne, 31 Vet.App. at 394. To the extent the veteran may have raised

such assertions during oral argument, we decline to exercise our discretion to take up that inquiry

in this case. See Maggitt v. West, 202 F.3d 1370, 1377–78 (Fed. Cir. 2000). Exercising that

discretion requires us to consider factors such as the potential harm to the veteran caused by

delaying a ruling or countervailing considerations such as protecting the Agency's administrative

authority and promoting judicial efficiency. Id. These interests are not at stake here.

III. CONCLUSION

Accordingly, the Board's March 16, 2016, decision is AFFIRMED.

SCHOELEN, Senior Judge, concurring in the judgment and dissenting in part: For the past

several years, this Court's extraschedular jurisprudence has been nothing short of disjointed – a

veritable grab-bag of concepts and ideas resulting in a never-quite-cohesive outcome. This Court

has struggled with an excessive amount of litigation surrounding the proper interpretation and

implementation of 38 C.F.R. § 3.321, particularly in the context of hearing loss. Doucette and its

progeny have done little to illuminate the correct path, and disagreements abound with every new

application of facts to the Thun framework. This case is no exception. I write separately today to

respectfully address, again, the frustration I espoused in Doucette, as well as to explain my

conclusion that extraschedular referral and awards are simply unavailable for Diagnostic Codes

(DCs) without listed symptoms.

I. Problems with the Majority's Changes to the Basic Extraschedular Framework

In 2007, the Martinak Court addressed extraschedular consideration in the context of

hearing loss, counseling that medical examiners must elicit "functional effects" information from

veterans. Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007). "Functional effects" was a term

of art used in that case that has persisted ever since, and by requiring examiners to provide

functional effects information for hearing loss cases, the Court was unmistakably signaling to

11

adjudicators that they must take a holistic look at a veteran's disability picture to determine whether

the veteran is being adequately compensated:

The policy of describing the results of all tests conducted makes sense, particularly

in the context of the extraschedular rating provision 38 C.F.R. § 3.321(b). Unlike

the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on

objective test results to determine whether a referral for an extraschedular rating is

warranted. The Secretary's policy facilitates such determinations by requiring VA

audiologists to provide information in anticipation of its possible application.

Id.

The following year, the Court in Thun attempted to craft a workable and meaningful

framework for the extraschedular referral and assignment process. Step 1 of Thun requires VA to

compare the severity and symptomatology of a veteran's disability picture to the DC at issue to

determine whether the DC is adequate to compensate the veteran. Thun v. Peake, 22 Vet.App.

111, 115 (2008). If the DC is inadequate to compensate the veteran, the first element is met, and

the adjudicator proceeds to Thun step 2, which requires VA to determine whether the veteran's

disability is "so exceptional or unusual due to such related factors as marked interference with

employment or frequent periods of hospitalization." 3 Id. at 115-16. If the second element is also

met, the adjudicator is required under Thun step 3 to refer the matter to the Director of

Compensation Service or his or her delegatee to determine whether an extraschedular rating is

warranted. Id. at 116. Even with recent regulatory changes, I believe this framework to be sound

and well-grounded in the text of the regulation; therefore, it should continue to serve as the bedrock

of our extraschedular analysis.

In the case at hand, the majority appears to agree that Thun should remain the law of the

land; however, their decision recasts Thun's steps – particularly its first step – in an attempt to stem

litigation perceived as unnecessary. Notably, the majority appears to replace Thun's step 1

comparison of severity and symptomatology to the DC at issue with a new approach fashioned as

a "totality of the factors inquiry rather than as a mechanical formula." Ante at 5. Although I agree

with the majority in principle that extraschedular consideration requires a holistic approach to

3

Effective January 8, 2018, VA's amendment to § 3.321(b)(1) changed the extraschedular analysis so that it

no longer requires consideration of the collective impact of service-connected disabilities. See Department of Veterans

Affairs, Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830 (Dec. 8, 2017). This regulatory

change also made minor alterations to language relevant to Thun steps 2 and 3. Because I do not believe this change

in language has any effect on the substance or structure of the Thun analysis, I have inserted the current regulatory

language into the Thun framework.

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determine whether referral is warranted, their reformulation of Thun step 1 deviates from past

precedent. Thun states that "initially, 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." 22 Vet.App. at 115. The majority opinion largely

subverts this relatively straightforward legal test, instead holding that "[t]his inquiry is not

reducible to a mere comparison between symptoms and the diagnostic criteria but requires a

reasoned assessment of both the veteran's full disability picture and the capacity of the rating

schedule to evaluate such." Ante at 5. Of course, the majority is free to change precedent in the

context of an en banc case, but it should be clear in its intentions and execution when doing so.

The majority creates an additional and unnecessary complication in its new Thun

formulation: It finds the term "functional impairment" most relevant to step 1, while the term

"functional effects" gets recategorized as relevant only to step 2. Past caselaw has used the terms

"symptoms," "functional effects," and "functional impairments" interchangeably, and I see no need

to delineate those concepts to shoehorn the DCs that do not list specific symptoms into the Thun

framework. See King v. Shulkin, 29 Vet.App. 174, 180 & n.5 (2017) (continuing Doucette's use

of interchangeable terms when comparing the veteran's disability picture to the DC and refusing

to address the propriety of doing so). "Impairment" as a term is no clearer in limiting or censoring

out the type of issues that veterans, such as Mr. Long, have raised. Mr. Long's ear pain is just as

much an impairment as it is an effect. Moreover, suddenly requiring veterans and their advocates

to use the magic word "impairment" will further confuse this already confusing area of the law.

Additionally, shifting all functional-effects considerations to Thun step 2 undercuts the

majority's holistic approach. As stated above, Martinak held that examiners must elicit functional

effects information so that the Board can ascertain whether a veteran's entire disability picture is

exceptional or unusual. But placing functional effects solely under step 2 means that if a veteran

displays uncharacteristic severity for his or her disability, as evidenced by his or her functional

effects, the Board nevertheless is not obligated to compare that level of severity to the DC. In

essence, this allows the Board to artificially cut off the Thun analysis at step 1 without actually

comparing severity to the DC at issue by simply labeling the manifestation of the veteran's

disability as an "effect." Through this ideological shift, the Court appears to abdicate its role of

interpreting the regulation to the Board, content to allow the Board an "I'll-know-it-when-I-see-it"

13

test regarding Thun's first step that will be effectively unreviewable on appeal. The majority's

formulation ultimately results in severity being read out of the application of the regulation.

As support for its position the majority cites Yancy v. McDonald, stating that "the first Thun

element compares a claimant's symptoms to the rating criteria, while the second addresses the

resulting effects of those symptoms." 27 Vet.App. 484, 494 (2016); ante at 7. But Yancy's step-2

discussion and citations clearly contemplate economic effects, not "functional effects" like the

dizziness or ear pain mentioned in Doucette. See Yancy, 27 Vet.App. at 494 (using the "loss of

hypothetical employment advancement opportunities and an inability to work" and "[e]vidence of

a claimant's lost income" as examples of "effects" belonging to Thun step 2) (citations omitted).

Perhaps the majority's interpretation of Yancy highlights a schism in the Court's extraschedular

jurisprudence, but I find this interpretation to be a novel and flawed interpretation of the post-

Doucette landscape, and the traditional understanding of Thun should not be replaced on this

basis.4

II. Limitation of Extraschedular Evaluations

Even if the majority here today applied Thun in the way I believe it is traditionally

understood, there is a more fundamental and overarching problem with the Court's extraschedular

jurisprudence – namely, there is no way for the Board to conduct the Thun step-1 analysis for

hearing loss or any other condition with a DC that does not list symptoms or explain the basis for

its assignment of severity. I first raised this issue in my Doucette dissent, wherein I stated that

"[b]ecause no symptoms are listed in the rating schedule for hearing loss, there is no way to

4

If I endorsed the majority's Thun formulation (which I do not), I would be forced to dissent from the

majority's affirmance of Mr. Long's Board decision. Their conclusion regarding the veteran's ear pain requires the

Court to fact-find, and I would remand under Doucette for the Board to engage in that analysis in the first instance.

Notably, this fact-finding regarding Mr. Long's ear pain creates a new and higher bar for a nexus. The reason Mr.

Long asserts that he has ear pain is because of hearing aids he must wear because of his service-connected hearing

loss. That chain of causation is not too attenuated. Such a stringent requirement is not required by our case law. See

Roper v. Nicholson, 20 Vet.App. 173 (2006), aff'd, 240 F. App'x 422 (Fed. Cir. 2007). Similarly, the majority conducts

its own analysis of evidence and arguments regarding whether Mr. Long's alleged psychological symptoms and effects

are sufficiently compensable under this Court's recent decision in Martinez-Bodon v. Wilkie, 32 Vet.App. 393 (2020),

and I would remand for the Board to provide that analysis. However, because I find an extraschedular evaluation

unavailable for hearing loss (see Section II), I ultimately must concur with the majority's conclusion; nevertheless, I

strongly disagree with its logic, particularly regarding Mr. Long's ear pain.

14

adequately compare the 'level of severity and symptomatology' to the rating criteria as Thun

requires when determining whether the schedular rating criteria adequately contemplate a veteran's

disability picture." 28 Vet.App. 366, 375 (2017) (Schoelen, J., dissenting).

The Doucette majority disagreed with that assessment, instead deciding – absent any Board

analysis or medical evidence – what types of second-order ("functional") effects were not

contemplated by the hearing loss DC. Specifically, the majority affirmatively stated that "the

rating criteria for hearing loss contemplate the functional effects of difficulty hearing and

understanding speech," but that not all functional effects of hearing loss are contemplated by § 4.85

so that the Board would be required to assess whether the DC contemplates functional effects such

as "ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties

communicating." Id. at 371. To this day, I still believe it was improper for the Court to determine,

as a matter of law, that particular effects of hearing loss were or were not contemplated by the DC.

We are ill-situated to determine what medical symptoms, effects, or severities are contemplated

by a DC that does not on its face provide any textual evidence for what should be considered part

of the disability.

On some level, I understand the Doucette Court's inclination to effectively say that "hearing

loss is hearing loss, and hearing loss is inherently contemplated by the hearing loss DC," because

that is an intuitive observation predicated on information in the Federal Register at the time the

regulation was promulgated that purported to explain what was being measured by the hearing

tests an examiner is required to perform. See Doucette, 28 Vet.App. at 368-69. However, the

Doucette majority divined what "functional effects" were not contemplated by the DC without

relying on any regulatory text or other sources. Moreover, their hearing-loss-is-hearing-loss

observation fails to account for Thun's call to compare severity – not just symptomatology – to the

rating criteria. As discussed, § 4.85 simply requires mechanical application of outputs from

audiometric testing and renders a Roman numeral on a grid to determine the appropriate level of

disability compensation. There are no symptoms and nothing by which to judge the severity of a

veteran's disability picture. For a veteran to be awarded a 10% disability rating, should that veteran

be able to hear someone speaking if the speaker's back is turned? Should a veteran be able to hear

a television without having to turn up the volume to an uncomfortable level for others in the room?

There is no way for us to know, because the regulation does not explain what level of difficulty

hearing is contemplated by a particular Roman numeral.

15

The same problem that exists in the hearing loss DC exists throughout the rating schedule.

For instance, the hypertension DC, DC 7101, lists no symptoms or functional effects, but instead

assigns disability ratings strictly based on diastolic blood pressure readings. 38 C.F.R. § 4.104,

DC 7101 (2020). Although common sense dictates that the DC is inherently meant to contemplate

the severity of a veteran's hypertension, I have no way of comparing an individual veteran's

manifestations of that hypertension to the Code to determine whether those manifestations are

unusual or exceptional, and I find any attempt by the Court to do so to be outside the bounds of

the law.

Leaving the matter exclusively to the Board – as the Doucette majority seemed to

envision – also provides no principled solution, as I believe any attempt by the Board to compare

symptoms and functional effects with nonexistent rating criteria forces the Board to make a

medical determination, resulting in a Colvin violation.

For nearly as long as this Court's doors have been open to veterans, we have held that the

Board "must consider only independent medical evidence to support their findings rather than

provide their own medical judgment in the guise of a Board opinion." Colvin v. Derwinski,

1 Vet.App. 171, 172 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed.

Cir. 1998). The heart of this analysis is the need for the Board to provide adequate reasons or

bases when interpreting medical facts so as not to substitute its own judgment for that of medical

professionals. See id. at 175 ("[A]ll medical evidence contrary to the veteran's claim will be made

known to him and be a part of the record before this Court.").

This Court has construed Colvin violations broadly, encompassing a plethora of ways that

the Board substitutes its own judgment for that of medical professionals. See Frost v. Shulkin,

29 Vet.App. 131, 141 (2017) (finding a Colvin violation when the Board determined the date of

onset of the appellant's PTSD absent adequate evidence); see also Leopoldo v. Brown, 4 Vet.App.

216, 219 (1993) (finding remand for a Colvin violation was warranted when the Board determined

the appellant's back condition was etiologically related to a leg disability, absent medical evidence:

"As judges, we have no idea how significant, medically speaking, leg length discrepancy might be

as to the etiological origins of the appellant's back condition"). For example, in Kahana v.

Shinseki, this Court found that the Board violated Colvin while analyzing a disability claim for an

anterior cruciate ligament (ACL) injury:

16

[T]he Board [made] a medical determination as to the relative severity, common

symptomatology, and usual treatment of an ACL injury without citing to any

independent medical evidence to corroborate its finding. Indeed, the record is

devoid of any medical evidence establishing the relative severity, common

symptomatology, and usual treatment of an ACL injury.

24 Vet.App. 428, 434 (2011). The implications of Colvin are easily seen in this schedular context:

The Board must utilize independent medical evidence to establish relative severity, common

symptomatology, and usual treatment of the disability. In the extraschedular context, the Board

must weigh similar factual information regarding severity and symptomatology when making an

extraschedular decision, as per Thun. In both instances (under DCs with listed symptoms), the

Board simply compares the severity and symptomatology of the veteran's condition to the criteria

in the DC and assigns the appropriate rating. Under an extraschedular analysis for a DC without

listed rating criteria, however, the Board takes the medical evidence of record and attempts to

compare it to nonexistent symptoms and severities in the DC. Although determining what

symptoms or functional effects a veteran displays is a factual determination within the Board's

purview, see King, 29 Vet.App. at 181 n.6 (refusing to decide "whether determining what qualifies

as a functional effect not contemplated by an applicable rating criteria is a question of law or a

question of fact," but stating that "the determination of the adequacy of evidence demonstrating

the presence or absence of functional effects is a question of fact"), forcing the Board to ascertain

what is or is not contemplated by a DC devoid of listed rating criteria unmoors the analysis from

the regulation and requires them to essentially decide sua sponte what a disability medically

entails. That act amounts to a Colvin violation.

III. The Unavailability of Extraschedular Ratings for DCs Without Listed Symptoms

If, then, in the context of extraschedular referral for hearing loss the Board cannot properly

apply Thun without running afoul of Colvin, the only logical conclusion is that we must judicially

create an exception to Thun that either (1) applies § 3.321 to DCs without listed symptoms in a

manner that allows for compliance with Colvin, or (2) holds that extraschedular referral is simply

unavailable for these types of DCs. As to the first method, creating an alternative framework to

Thun is inappropriate because it would require the Court to operate outside the bounds of the

regulation. The regulation is clear on its face: "The governing norm in these exceptional cases is

a finding . . . that application of the regular schedular standards is impractical because the disability

17

is so exceptional or unusual due to such related factors as marked interference with employment

or frequent periods of hospitalization." 38 C.F.R. § 3.321(b). Thun's pronouncement, that

"initially, 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," 22 Vet.App. at 115, still holds weight because it is a straightforward application

of the regulatory text.

It is my belief, therefore, that the en banc Court should take the second approach: Accept

Thun as good law based on the regulation; hold that extraschedular evaluations are unavailable for

DCs that require mechanical applications of test results and are devoid of listed criteria; and

overrule any other conflicts in our previous jurisprudence – including Martinak, to the extent that

it endorses the idea that extraschedular ratings are available for hearing loss.5

As applied to the case at hand, the Board's decision would be based on an incorrect theory

of law; however, because an extraschedular evaluation would be unavailable for hearing loss, I

would find it harmless error. 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). Therefore, I believe

that the Board's decision should be affirmed.6

5

I do not reach this conclusion lightly. I do not believe veterans or the system are well served by determining

that significant regulatory provisions lie beyond the review of this Court or that certain disabilities are more worthy

of extraschedular evaluations. However, I believe that creating this type of exception to the Thun framework for these

types of DCs is the only way to prevent the Board from making prohibited medical determinations. Although these

regulations appear highly objective because of their mechanical application of set criteria, through their silence of

specific symptoms they negate a veteran's right to be fully compensated for his or her disability picture. These DCs

ignore the very nature of extraschedular evaluations, which require listed symptoms and disability levels with which

to compare the veteran's symptomatology and severity. I would urge VA to write more comprehensive regulations

that encompass objective criteria as well as specific symptoms, such as the DCs for diabetes mellitus. See 38 C.F.R.

§ 4.119, DC 7913 (stating that for a 100% disability rating, the veteran must show "more than one daily injection of

insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities)

with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly

visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be

compensable if separately evaluated").

6

Lastly, I recognize that this goes a step or more beyond the conclusion I reached in Doucette. After

witnessing years of endless remands for poor reasons or bases and a general inability of the Board and the Court to

review these cases, I see this evolution in philosophy as the natural and logical endpoint in the debacle that has been

extraschedular analysis, with fidelity to the regulation and to this Court's foundational case of Colvin being of

paramount importance. But again, I sincerely hope that VA remedies this impasse by drafting more comprehensive

regulations.

18

MEREDITH, Judge, with whom GREENBERG and ALLEN, Judges, join, dissenting:

Because we believe the majority reaches farther than necessary in this case, acts as the fact-finder

rather than reviewer in affirming the decision on appeal, and does not offer clear guidance on the

issue it purports to settle, we respectfully dissent.

First, as the majority recognizes, the Court's decision in Morgan v. Wilkie was clear:

"[E]xtraschedular consideration is appropriate only after the agency has exhausted all other tools

for a disability rating, whether direct, secondary, or analogous ratings." Ante at 6 (citing Morgan,

31 Vet.App. 162, 168 (2019) (emphasis added)). Here, the issue before the Board of Veterans'

Appeals (Board) in March 2016 was "[w]hether referral for extraschedular consideration of the

claim of entitlement to an initial compensable rating for the service-connected bilateral hearing

loss disability is warranted." Record (R.) at 2. In considering that question, the Board noted that

the appellant purported to identify "favorable evidence demonstrating severe functional effects of

his hearing loss[,] including . . . interference with his ability to work with his students, including

writ[ing] lesson plans and preparing for classes."7 R. at 6. On appeal, the appellant also asserts that

the Board failed to adequately address evidence that he experiences ear pain as a result of his

hearing aids and has difficulty with confidence/self-esteem and with his teaching duties due to his

hearing loss. Appellant's Br. at 8; Reply Br. at 4; see R. at 420-21, 428.

There is no dispute that the Board did not consider whether there are potential schedular

rating alternatives for these difficulties. See R. at 6-9. Because that "threshold analysis" must

precede any consideration of extraschedular evaluations "when possible schedular alternatives for

rating a disability are either raised by the claimant or reasonably raised by the record," Morgan,

31 Vet.App. at 168, see ante at 6, we would remand for the Board to provide that analysis in the

first instance.8 More importantly, because, under Morgan, the Board's extraschedular analysis may

7

The Board acknowledged that the appellant also alleged that his anxiety and depression were related to his

hearing loss. R. at 6. However, our analysis excludes consideration of those difficulties because the Board found, and

the appellant does not dispute, that those conditions are not related to any service-connected disability. R. at 7; see

Appellant's Brief (Br.) at 10; Reply Br. at 3-4. Thus, there is no need for the Board or the Court to discuss whether

additional schedular or extraschedular options exist to account for those manifestations. Accordingly, we believe the

majority's discussion of the merits of the allegations raised to the Board as to anxiety and depression goes farther than

necessary. We also note that, in its discussion, the majority assumes without explanation that the fifth edition of the

Diagnostic and Statistical Manual of Mental Disorders is applicable to the appellant's case. See ante at 7, 9-10. But

see 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014).

8

Although we do not opine as to whether the appellant could be compensated for these difficulties through

schedular tools, we cannot conclude that no harm resulted from bypassing that analysis given the evidence that those

difficulties caused work-related challenges. See 38 C.F.R. § 4.1 (2020) (explaining that the rating schedule

19

now be considered premature where it occurs prior to the consideration of schedular alternatives,

we would similarly conclude that it is premature for the Court to opine on the propriety of the

Board's denial of referral for extraschedular consideration for this particular veteran and, more so,

to generally reexamine the Court's caselaw on the extraschedular framework based on the facts of

this case. Indeed, the majority's statement in the introduction to the opinion that the Board decision

is affirmed "because the symptomatology [t]he [appellant] presents is not exceptional as it is

readily capable of evaluation under the relevant diagnostic criteria and available rating tools,"9

ante at 1-2, signals clearly that the extraschedular discussion that follows is unnecessary and

amounts to an advisory opinion.10 See Barnett v. Wilkie, 32 Vet.App. 83, 87 (2019) (citing

Waterhouse v. Principi, 3 Vet.App. 473, 474 (1992) (holding that, absent the ability to redress an

injury through a favorable decision, any act by the Court would be "'gratuitous'" (quoting Simon

v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976))).

Second, even if a remand under Morgan is not the appropriate action and the extraschedular

framework is ripe for the Court's review, we would nevertheless conclude that remand is

warranted. In that regard, the majority purports to lay out a revised framework for assessing the

issue of extraschedular consideration, but the Board did not make the predicate factual findings

necessary to apply that framework. Accordingly, the matter should be remanded for the Board to

do so in the first instance. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) ("[T]he

evaluation and weighing of evidence are factual determinations committed to the discretion of the

factfinder—in this case, the Board."); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)

("[A]ppellate tribunals are not appropriate fora for initial fact finding."); see also Washington v.

Nicholson, 19 Vet.App. 362, 369 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995). To

compensates for impairment in earning capacity); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due

account of the rule of prejudicial error").

9

The majority does not explain why it would be appropriate to affirm on a different basis than that on which

the Board decision rests. See Sec. Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947) ("[A] reviewing court,

in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge

the propriety of such action solely by the grounds invoked by the agency.").

10

Notably, the majority appears to acknowledge that its discussion of the first step of Thun v. Peake,

22 Vet.App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), is dicta by

characterizing its recitation of potentially relevant factors as "guidance," ante at 6, and by acknowledging that the

appellant's failure to challenge Thun step two is "fatal to his appeal," ante at 11.

20

proceed otherwise under these circumstances would require the Court to engage in rather extensive

fact-finding, as the majority has done here, ante at 9-10, and usurp the role of the Board.11

Third, although the majority attempts to synthesize the major caselaw pertaining to the

extraschedular framework and announce clear rules governing that framework—a difficult

undertaking, to be sure—the decision ultimately provides little clarity because it requires

consideration of new and perhaps inapt terminology, imposes an additional burden that does not

seem to align with the way in which disabilities are generally rated, and appears to overrule several

precedential decisions without saying so.12 For example, the majority introduces the term

"functional impairments" into this realm and then offers it as a synonym for "symptom." Compare

ante at 6 ("[F]unctional impairments serve as the operative focus of Thun's first step."), with ante

at 5 ("Thun's first step centers on . . . the full symptomatology . . . ."). But, the usual meaning of

symptom is "any subjective evidence of a disease or of a patient's condition, i.e., such evidence as

perceived by the patient; a noticeable change in a patient's condition indicative of some bodily or

mental state."13 Dorland's at 1816-17; see Perrin v. United States, 444 U.S. 37, 42 (1979)

("[U]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary,

11

For instance, although the majority purports to review "the Board's findings regarding ear pain," ante at

10, the Board made no such findings, see R. at 2-9. Rather, the majority, in applying its new framework, finds in the

first instance that there is no "linkage between the complaint [of ear pain] and [the appellant's] hearing loss" because

he "consistently attributed his ear pain to his use of hearing aids and not to hearing loss." Ante at 10. Aside from the

majority's disregard for the Court's role as reviewer rather than fact-finder, we question a finding that ear pain caused

by hearing aids is not related to the hearing loss that necessitates the use of such assistive devices.

12

We further note that the majority's characterization of the holding in Doucette v. Shulkin, 28 Vet.App. 366

(2017), may lead to additional confusion in the extraschedular realm. For example, the majority states that the Court

in Doucette "held that the rating criteria for hearing loss contemplated symptomatology (i.e., the full range of

symptoms) related to decreased hearing even though the diagnostic code failed to list any symptoms but relied solely

on audiometric tests." Ante at 4. But the holding in Doucette was more narrow: "[T]he rating criteria for hearing loss

contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work

environment." 28 Vet.App. at 369. In other words, the only "symptom" of hearing loss contemplated by the rating

schedule is difficulty hearing. Moreover, the majority states that, in Doucette, "rather than engaging in a line-item

accounting of each symptom and effect as compared to the diagnostic criteria, we based our ruling on the common-

sense observation that a diagnostic code designed to assess hearing loss necessarily contemplates those symptoms and

effects commonly associated with such." Ante at 5. But, the question in Doucette was whether there were any

diagnostic criteria other than hearing loss (i.e., difficulty hearing), so there was nothing in the rating schedule to

compare the appellant's symptoms against.

13

We recognize that the medical definition of "symptom" is not entirely sufficient to capture the way in

which the Court has used that word in the extraschedular context. As noted above, the word "symptom," medically

speaking, captures the subjective aspect of evidence of disease; by contrast, the word "sign" is medically defined as

"an indication of the existence of something: any objective evidence of a disease, i.e., such evidence as is perceptible

to the examining physician, as opposed to the subjective sensations (symptoms) of the patient." DORLAND'S

ILLUSTRATED MEDICAL DICTIONARY 1708 (32d ed. 2012) [hereinafter DORLAND'S]. We generally understand the

Court's use of the word "symptoms" to include both objective and subjective evidence of a particular condition.

21

common meaning."); Nielson v. Shinseki, 23 Vet.App. 56, 59 (2009) ("It is commonplace to

consult dictionaries to ascertain a term's ordinary meaning."). And, under the heading "[f]unctional

impairment," a VA regulation explains that "[t]he basis of disability evaluations is the ability of

the body as a whole, or of the psyche, or of a system or organ of the body to function under the

ordinary conditions of daily life including employment," 38 C.F.R. § 4.10 (2020). In light of these

definitions, it is unclear to us on what basis the word "symptom" could be a substitute for the term

"impairment" or "functional impairment."

Further, the term "disability" in 38 U.S.C. § 1110 "refers to the functional impairment of

earning capacity, not the underlying cause of said disability." Saunders v. Wilkie, 886 F.3d 1356,

1363 (Fed. Cir. 2018) (emphasis added). It is thus similarly unclear to us how "functional

impairment of earning capacity," id.—literally, the effect of the body's inability to function on the

veteran's earning capacity—could also mean "evidence of a disease," Dorland's at 1708, 1816-17.

In sum, we are concerned that the language the majority offers to govern the extraschedular

analysis may lead to confusion in applying the revised framework.

Additionally, in introducing the requirement that "[extraschedular] consideration is not

warranted for downstream effects that clearly lack a requisite and legally recognized nexus to

service or to a service-connected disability," ante at 7 (emphasis added), the majority appears to

place a new burden on claimants14 and does not address whether medical evidence would generally

be required to make such a nexus determination. If so, the majority's framework may result in

additional burden on VA and further delay for claimants while VA obtains such a medical opinion.

Finally, the majority's holding that the inquiry into whether a claimant's disability picture

is exceptional or unusual "is not reducible to a mere comparison between symptoms and the

diagnostic criteria," ante at 5, could be read as implicitly overruling Court decisions that have

suggested that the inquiry is as simple as that. See, e.g., King v. Shulkin, 29 Vet.App. 174, 179

(2017) ("This first element requires the Board to do nothing more than compare a veteran's specific

symptoms and their severity with those contemplated by the plain language of the rating

schedule. . . . [T]he components to be considered in the first step are clear: symptoms and their

severity on the one hand and the plain language of the schedular criteria on the other."); Yancy v.

14

It is unclear on what basis the Court could impose a new nexus requirement after service connection has

already been established and the only question is whether the service-connected condition is so exceptional that a

higher rating is warranted. Cf. 38 U.S.C. § 1110.

22

McDonald, 27 Vet.App. 484, 494 (2016) ("Essentially, the first Thun element compares a

claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those

symptoms."); 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."). In sum, we are concerned that the

majority's unclear treatment of prior precedent may lead to confusion at both the agency and Court

level.

For these reasons, we respectfully dissent.

23