# Willie C. Wages v. Robert A. McDonald

> United States Court of Appeals for Veterans Claims · January 23, 2015 · 27 Vet. App. 233

URL: https://www.frixlaw.com/law-library/cases/9805804

## Case

- **Full name:** Willie C. WAGES, Appellant, v. Robert A. McDONALD, Secretary of Veterans Affairs, Appellee
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** January 23, 2015
- **Citations:** 27 Vet. App. 233; 2015 U.S. Vet. App. LEXIS 59; 2015 WL 293616
- **Precedential status:** Published
- **Opinion:** Concurrence by Kasold
- **Judges:** Kasold, Moorman, Pietsch
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9805804

## How later opinions describe it (automated extraction)

- holding that a decision of TDIU under 38 C.F.R. § 4.16 (b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board
- holding that the Board conducts de novo review of the Director of Compensation Service's decision denying extra-schedular consideration
- holding that the Director of Compensation’s determination as to whether an ex-traschedular rating was warranted “is not evidence”
- holding that the Director of Compensation's determination as to whether an extraschedular rating was warranted "is not evidence"
- holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration

## Opinion text

KASOLD, Chief Judge,
concurring:
I agree with today’s decision, but write separately to note that the heart of the issue decided by the Court arises from the holding in Bowling v. Principi, 15 Vet.App. 1 ,1 0 (2001), that the Board is prohibited from awarding extraschedular TDIU in the first instance. The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16 (b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided. I believe the en banc court should have taken this case for review and overturned Bowling, see Bethea v. Derwinsky 2 Vet.App. 252, 254 (1992) (panel decisions constitute binding precedent unless overturned by, inter alia, the full Court or the U.S. Court of Appeals for the. Federal Circuit), and thereby re-estab *240 lished the authority of the Board to award extraschedular TDIU in the first instance.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9805804. Public record. Not legal advice.