Johnston v. Brown

STEINBERG, Judge,

concurring:

I concur in the disposition of the case by the majority and in parts I., II.A, II.B., and III. of the Court’s opinion. I write separately to explain the means by which I would reach the conclusions that the majority does in parts II.C. and II.D.

I. Extraschedular Rating

In its discussion of the extrasehedular-rating claim in part II.C., the majority concludes that remand is in order because the Board of Veterans’ Appeals’ (BVA or Board) statement of reasons or bases was inadequate under 38 U.S.C. § 7104 (d)(1) as to its denial of that claim. Ante at 86. In so concluding, the majority ignores two logical steps necessary to the result it reaches: (1) that 38 C.F.R. § 3.321 (b) (1996) applies to the circumstances described and (2) that the veteran has presented evidence sufficient to well ground such an extraschedular-rating claim and thereby invoke the reasons-or-bases requirement. I agree that the majority’s disposition in this part of the opinion is correct, but I believe the process required to reach that disposition merits elaboration.

A. 38 C.F.R. § 3.321 (b)

Department of Veterans Affairs (VA) regulations in 38 C.F.R. § 3.321 (b) explain the standard for assigning an extraschedular rating:

The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.

38 C.F.R. § 3.321 (b). Our caselaw has not clearly held whether § 3.321(b)’s identification of “frequent periods of hospitalization” or “marked interference with employment” makes them the sole criteria for extraschedular evaluation. Some of this Court’s cases might be read as suggesting tacit approval of BVA treatment of these criteria as exclusive because they remand, for inadequate statements of reasons or bases under § 3.321(b), eases in which the BVA appeared to treat those criteria as exclusive but failed to address evidence relating to those criteria. 1 Other cases in our Court seem to treat § 3.321(b) broadly, such that any “exceptional or unusual factors” could necessitate consideration of an extraschedular rating. 2 Moreover, the language of the regulation, listing interference with employment or frequent hospitalization as “such related factors” (emphasis added), seems to contemplate more than merely those two examples. 3

*88 Although the wording of § 3.321(b) is not entirely free from ambiguity, 4 I agree with the majority that the “effect of the appellant’s wheelchair-based life on his service-connected conditions”, ante at 86, even if that effect has not been articulated in terms of effect on employment or frequent hospitalization, does raise the possibility of an “exceptional or unusual disability picture” as a result of service-connected disability that should be considered by the Board under 38 C.F.R. § 3.321 (b).

B. Well-Grounded Claim

In order to invoke the statement-of-reasons-or-bases requirement of 38 U.S.C. § 7104 (d)(1) in this case, the violation of which the majority cites as grounds for remand as to § 3.321(b), the claimant must make out a well-grounded claim for an increased rating. See Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992); Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Kelly (Gene) v. Brown, 7 Vet.App. 471, 474-75 (1995) (Steinberg, J., dissenting). But cf. Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990) (Court remanded claim because to extent BVA had found claim not well grounded BVA failed to provide “requisite statement of ‘reasons or bases’ for such a conclusion”). A rating-increase claim is generally well grounded when a claimant indicates that he or she has suffered an increase in disability. See Proscelle v. Derwinski, 2 Vet.App. 629, 631-32 (1992). The veteran here submitted a well-grounded claim for a rating increase by virtue of his February 1990 application for an increase in his disability compensation (R. at 164) and of the March 1991 and July 1993 VA examinations (R. at 194, 307-08). Such a well-grounded rating-increase claim subsumes the issue of entitlement to an extraschedular rating under § 3.321(b), because the Court has held that the extraschedular-rating issue is necessarily intertwined with a claim for an increased rating. Floyd v. Brown, 9 Vet.App. 88, 96 (1996) (noting that issue of extrasehedular rating is not a “matter” separate from an increased-rating claim but is “always part of the same claim” under Bernard v. Brown, 4 Vet.App. 384, 391-92 (1993), and 38 U.S.C. § 7104 (a) and that Board was thus obligated to consider applicability of extraschedular-rating regulation), recons. and en banc rev. denied, 9 Vet.App. 253 (1996) (en banc); see also id. at 102-03 (Steinberg, J., concurring in part and dissenting in part). 5

When a claimant submits evidence, including by alleging facts as to which he or she is competent to testify, 6 such as — but not limit *89 ed to — frequent hospitalizations or marked interference .with employment, consistent with § 3.821(b), or expressly requests an ex-traschedular rating prior to the BVA decision, the Board is required to address the need for an extraschedular rating as a route to the increased rating for which the claimant has applied. 7 In this respect, I agree with the August 16, 1996, opinion of the VA General Counsel, that “where the claimant has not expressly raised the issue of entitlement to a rating under section 3.321(b)(1) ..., the Board will be required to address the issue only if the evidence and argument before the Board reasonably indicated that [that] regulation[ ][is] potentially applicable”. VA Gen. Coun. Pree. 6-96 ¶ 6 [hereinafter G.C. Pree. 6-96],

In the present ease, the appellant made allegations in his brief that his wheelchair-bound condition has aggravated his service-connected disabilities (Br. at 2, 4-5) (an issue that the majority correctly disposes of under Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en bane), ante at 85-86). Nevertheless, it is plain from the BVA decision that both the fact of his wheelchair-bound status and the possible special difficulty for that status resulting from his service-connected conditions was before the Board. See R. at 11 (“[h]e had some symptoms from the left wrist wound when pushing his wheelchair”); R. at 223 (Form 1-9 (Substantive Appeal to the BVA) stating, inter aha: “when the veteran bends or moves the wrong way the vet will have sharp pains in his chest and side”) (underlining in original). Moreover, the July 1993 VA examination specifically noted that the veteran “seems to have some minor discomfort in the wrist, with strenuous use.” R. at 308. Because the veteran’s claim for an increased rating for his service-connected disability was well grounded (see Proscelle, supra), the Board was required to construe his claim liberally; as this Court held in Floyd v. Brown: “The procedural requirements of 38 C.F.R. § 3.321 (b)(1) do not derogate from the ability or obligation of the Board to seek out all issues which are reasonably raised [as to the claim for an increased rating] from a liberal reading of the documents or oral testimony submitted prior to the BVA decision.” Floyd, 9 Vet.App. at 95-96 (citing EF v. Derwinski, 1 Vet.App. 324, 326 (1991)).

Thus, I believe that the inereased-rating claim was well grounded on the record in this case and that the Court is correct in remanding the extrasehedular-rating issue for an adequate statement of reasons or bases by the Board. Such an issue is subsumed in the inereased-rating claim here because the evidence of record reasonably raised an “exceptional or unusual disability picture” that could “render impractical the application of the regular schedular standards” to the claim for an increased rating. 38 C.F.R. § 3.321 (b); see G.C. Prec. 6-96, supra. Otherwise, in view of the fact that the veteran did not expressly raise such an issue prior to the BVA decision on appeal, the Board’s inadequate statement of reasons or bases would be a nonprejudicial error because the claimant would not have been entitled to an adjudication as to an extraschedular rating. See 38 U.S.C. § 7261 (b); cf. Edenfield v. Brown, 8 Vet.App. 384, 390 (1995) (en banc) (holding that when Board incorrectly finds claim to be well grounded and then denies it on merits, Board’s error is not prejudicial to appellant and BVA decision will be affirmed as to disallowance of claim).

II. CUE Claim

The majority also concludes that because the appellant addressed his CUE claim in his reply brief, the claim was not abandoned and that remand is therefore appropriate. Ante at 86. However, in my view, the Court has jurisdiction to deal with the BVA’s failure in its May 1994 decision to adjudicate the CUE claim, raised in the veteran’s August 13, 1991, Form 1-9, only if that claim was raised *90 before a regional office (RO) decision preceding the BVA decision on appeal and the veteran had filed an NOD as to that VARO’s failure to adjudicate that CUE claim. See Phillips v. Brown, 10 Vet.App. 25, 30 (1997) (claim of CUE is a separate claim for NOD purposes); see also id. at 32, 34-35 (Stein-berg, J., concurring in part and dissenting in part). In Slater v. Brown, 9 Vet.App. 240, 244-45 (1996), the Court (quoting Isenbart v. Brown, 7 Vet.App. 537, 541 (1995)) held that it had no jurisdiction over a claim for a total disability rating based on individual unemployability (TDIU) in the absence of a filing that could properly be construed as an NOD “expressing disagreement with the failure of the RO to address a TDIU claim.” Although in earlier cases the Court had found jurisdiction over inferred claims without looking at the NOD question, 8 I believe that Isenbart and Slater represent an evolution of the law since then and that an NOD is now required in order for the Court to have jurisdiction to remand for the BVA’s failure to adjudicate a claim whether inferred or, as here, made directly. The majority opinion ignores this issue.

In other words, absent a valid NOD as to the CUE claim in this case, this Court lacks jurisdiction to remand that claim to the BVA. 9 However, I believe that there is a valid NOD as to this claim. After the CUE claim was raised to the Board by the veteran in his August 1991 Form 1-9 (R. at 222-24), 10 there was an RO decision on August 29,1991 (R. at 224), and another on January 2, 1992 (R. at 239), that did not address that CUE claim. Thereafter, in a February 18, 1992, Form 1-9, the veteran stated: “The veteran also asks that V.A. look at his 1-9 dated 8-5-91.” (R. at 247). I believe that this reference back to the Form 1-9 that had raised the CUE claim is sufficient to satisfy what Slater characterized as Isenbart’s holding that “in order for ‘appellate review [to be] initiated,’ the ‘language contained in the NOD [must] sufficiently encompass[ ] the RO’s failure to adjudicate the TDIU claim.’ ” Slater, 9 Vet.App. at 244 . The Court has held that a Form 1-9 can be an NOD as to a claim if there is not another NOD as to that claim. Malgapo v. Derwinski, 1 Vet.App. 397, 398-99 (1991) (in a portion not overruled by Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994)). Thus, in my view, under applicable *91 precedent, the Court has jurisdiction to remand the CUE claim because — and only because — there was a jurisdiction-conferring NOD as to the RO’s failure to adjudicate that claim after it had been raised to the RO.

. See Fleshman v. Brown, 9 Vet.App. 548, 552 (1996); Bagwell v. Brown, 9 Vet.App. 337, 339 (1996). However, these cases presented no occasion for considering whether criteria other than frequent hospitalization or interference with employment could apply under 38 C.F.R. § 3.321 (b), and their mere mention of the listed criteria under the regulation cannot function to narrow the regulation.

. See Shipwash v. Brown, 8 Vet.App. 218, 227 (1995) ("[a]ccording to Fisher [v. Principi, 4 Vet.App. 57, 60 (1993)], the BVA must address referral under § 3.321(b)(1) only where circumstances are presented which the Director of VA’s Compensation and Pension Service might consider exceptional or unusual”); Fisher, supra ("the rating schedule will apply unless there are 'exceptional or unusual’ factors which render application of the schedule impractical”).

.Cf. Brown (Kevin) v. Brown, 5 Vet.App. 413, 419 (1993) ("[b]ecause this regulatory language is neither ambiguous nor inconsistent with law, it must be applied in accordance with its plain meaning”); cf. also Smith (William A.) v. Brown, 35 F.3d 1516, 1523 (Fed.Cir.1994) (canons of statutory interpretation apply also to interpreting regulations); Gardner v. Brown, 5 F.3d 1456, 1458 (Fed.Cir.1993), aff'd, 513 U.S. 115 , 115 S.Ct. 552 , 130 L.Ed.2d 462 (1994) ("starting point in interpreting a statute is its language, for 'if the intent of Congress is clear, that is the end *88 of the matter’ ” (internal punctuation omitted) (affirming Gardner v. Derwinski, 1 Vet.App. 584 (1991), and quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 , 113 S.Ct. 2151, 2156-57 , 124 L.Ed.2d 368 (1993) (itself quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 , 104 S.Ct. 2778, 2781 , 81 L.Ed.2d 694 (1984))).

. The use of "such” creates some ambiguity when it is followed by two uses of "as”. Although it seems fairly clear that the first "as" more logically goes with "such” (so as to make the two criteria merely examples), it is possible that the drafters also meant the "such” to go with the second "as” ("such related factors ... as to render”) and that the reference to the two criteria was intended, however poorly expressed, to be exclusive. Any ambiguity could be readily solved by adding "so” before the second "as”.

. What is subsumed in a rating-increase claim is a matter quite different from whether a claim for one mental disorder includes a claim for another mental disorder when the latter disorder was not diagnosed at the time that the first claim was brought and the latter disorder was never considered by the VA regional office (RO). See Ephraim v. Brown, 82 F.3d 399, 402 (Fed.Cir.1996) (vacating Ephraim v. Brown, 5 Vet.App. 549 (1993), and concluding that, for purposes of whether there was jurisdiction-conferring Notice of Disagreement (NOD) under section 402 of Veterans’ Judicial Review Act, Pub.L. No. 1 GO-687, § 402, 102 Stat. 4105 , 4122 (1988) (found at 38 U.S.C. § 7251 note), as to service-connection claim, "a claim based on the diagnosis of a new mental disorder, taken alone or in combination with a prior diagnosis of a related mental disorder, states a new claim, for the purpose of the jurisdictional requirement, when the new disorder had not been diagnosed and considered at the time of the prior [NOD]”, and hence separate NOD is required to put into appellate status a claim as to that newly-diagnosed disorder); Ephraim, 5 Vet.App. at 551-54 (Steinberg, J., dissenting).

.See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Facts so alleged are presumed credible for the purpose of determining whether a claim is well grounded. See Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993).

. See Shipwash, supra (where no evidence of "an exceptional disability picture [including the itemized criteria]", Board need not evaluate for ex-traschedular rating); Fleshman, supra (remanding, with regard to § 3.321(b), where Board failed to satisfy reasons-or-bases requirement to discuss, inter alia, reason veteran found unacceptable for employment); Bagwell, supra (remanding, with regard to § 3.321(b), because Board failed to provide full reasons-or-bases analysis with regard to a letter from an employer who denied employment on basis of veteran’s disabilities).

. See Douglas v. Derwinski, 2 Vet.App. 435, 439-40 (1992) (en banc); EF v. Derwinski, 1 Vet.App. 324, 326 (1991); Payne v. Derwinski, 1 Vet.App. 85, 87 (1990).

. This Court's appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818 , 108 S.Ct. 2166, 2178-79 , 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other VA agency of original jurisdiction. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402 , 102 Stat. 4105 , 4122 (1988) (found at 38 U.S.C. § 7251 note). See generally Hamilton v. Brown, 4 Vet.App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994).

. In Russell v. Principi, the Court defined CUE as follows:

Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.... [CUE] is the sort of error which, had it not been made, would have manifestly changed the outcome ... [, an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed.

Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc). "In order for there to be a valid claim of [CUE], ... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Ibid. "If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error, as in Mata [v. Principi, 3 Vet.App. 558 (1992)], that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error.” Fugo v. Brown, 6 Vet.App. 40, 44 (1993). In the present case, the veteran’s Form 1-9 (R. at 222-24) appears to satisfy the Russell and Fugo requirements: the veteran both states that "a clear and unmistakable error has been made” and argues that the medical examinations performed by VA were not in keeping with the requirements of 38 C.F.R. §§ 4.2 , 4.42, 4.49, 4.50, and 4.56 (1990).