Cantrell: TDIU, EMPLOYMENT "IN A PROTECTED ENVIRONMENT"

Cantrell v. Shulkin, docket no. 15-3439 (Apr. 18, 2017)

HELD: VA has not defined “employment in a protected environment” for purposes of entitlement to TDIU, but factors to consider include “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” VA adjudicators must consider the combined impact of a veteran’s multiple service-connected disabilities in determining whether referral for extraschedular consideration is warranted.

SUMMARY: Veteran Eric Cantrell was service connected for ulcerative colitis, among other conditions. He requested a total disability rating based on individual unemployability (TDIU) based on evidence of chronic loose stools and abdominal discomfort that “made it difficult for him to stand or be away from the bathroom for prolonged periods of time.” He reported having 6-10 bowel movements a day – when he was feeling well – and up to 16-20 bowel movements a day during his monthly episodes of “pouchitis” that lasted three to four days.

Mr. Cantrell was employed as a park ranger and was able to “work around his condition by knowing the location of every restroom in the park and by avoiding eating anything at work during pouchitis episodes.” He stated that he was only able to maintain his job “because of the many accommodations made by his employer, including being assigned only to duty stations near restrooms, not being required to remain at emergency scenes, and always having another ranger on call for him in case he needed to leave work early for medical reasons.” He had to leave work early about three times per month, and was unable to work at all about two to three times per month.

To support his claim, he submitted a private vocational assessment, which noted that his condition resulted in 10 to 15 bathroom breaks per day, lasting 20 minutes each, and that his current job was “tantamount to a ‘protected employment’ situation” because no typical employer would allow “a worker to take three and one third (3 1/3) hours per workday/work shift for bathroom break purposes.” The vocational expert determined that Mr. Cantrell’s need for bathroom breaks rendered him “totally unemployable for any competitive occupation.”

The Board denied TDIU, finding that Mr. Cantrell’s employment was substantially gainful. The Board discounted the private vocational expert’s opinion that his job was “in a protected environment,” because it found that the symptoms he reported to the vocational expert were inconsistent with his prior statements. The Board further found that Mr. Cantrell’s employment was not “in a protected environment” because he had “substantial responsibilities” and his employer’s accommodations enabled him to work full time.

On appeal to the Court, Mr. Cantrell argued that the Board provided an inadequate explanation for its determination that his job did not qualify as “in a protected environment.” He noted that VA did not define employment “in a protected environment,” but argued that “‘employment in a protected environment’ exists when a veteran ‘is only able to work because his employer protects him from termination.’” The Secretary argued that VA intentionally chose “not to define ‘employment in a protected environment,’ leaving it to the discretion of the factfinder on [a] case-by-case basis.” The appellant strongly objected to the Secretary’s position, arguing that “without an articulated standard for employment ‘in a protected environment,’ he cannot discern and the Court cannot determine whether the factors the Board considered in this case were appropriate.” The Court agreed with Mr. Cantrell.

The Court first discussed the relevant regulation, C.F.R. § 4.16, which provides that a veteran may be entitled to TDIU when his service-connected conditions render him unable to secure or follow substantially gainful employment. The regulation states that “marginal employment is not gainful employment,” and defines marginal employment as employment that either (1) results in earned annual income below the Census Bureau’s poverty threshold or, when a person’s income exceeds the poverty threshold, (2) on a facts-found basis, including “employment in a protected environment such as a family business or sheltered workshop.”

The Court determined that the meaning of “in a protected environment” is not clear from the plain language of the regulation, but declined to defer to the Secretary’s “we know it when we see it” definition that would essentially rely on hundreds of VA adjudicators to “uniformly and consistently apply that undefined term without guidance.” The Court stated that without a definition, “there is no standard against which VA adjudicators can assess the facts of a veteran’s case to determine whether he or she is employed in a protected environment.” The Court held that “absent an articulated standard for employment ‘in a protected environment’ that is capable of consistent application by VA and meaningful review by this Court, we cannot defer to the Secretary’s decision not to define that term in § 4.16(a).”

The Court discussed VA’s historical difficulties in implementing this regulation, adding that it “has little confidence that VA has or will be able to determine employment ‘in a protected environment’ in a consistent manner without further guidance from the Secretary.”

The Court stated that “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work might be appropriate facts to consider in determining whether a veteran is employed in a protected environment,” but VA’s failure to define this phrase made it impossible for the Court “to meaningfully assess the propriety of the Board’s reliance on the factors it cited in this case.” However, the Court declined to define the phrase, stating that it is VA’s responsibility to define its own regulation, and remanded this case back to the Board to provide an adequate statement of reasons or bases for its decision.

The Court also determined that the Board provided an inadequate explanation for its rejection of the private vocational expert’s opinion. The Board’s assessment of this opinion focused on the vocational expert’s estimate of the amount of time the veteran spent in the restroom each day. The Board determined that the veteran’s reports to the vocational expert were “inconsistent with the rest of the record” because the veteran never stated that “he spends nearly half of his work shift in the restroom.” The Court found, however, that the record contains no other evidence regarding the amount of time spent in the restroom each day – and “thus no statements that may be inconsistent” with the vocational expert’s opinion. The Court concluded that “the Board failed to identify a proper foundation in the record for its adverse credibility determination.”

The Court further determined that the Board erred by denying referral for consideration of entitlement to TDIU on an extraschedular basis. The Court reiterate that the extraschedular referral determination requires the Board to “consider the collective impact of multiple service-connected disabilities whenever that issue is expressly raised by the claimant or reasonably raised by the record,” and determined that the issue was reasonably raised, citing evidence that Mr. Cantrell “could not stand or walk without difficulty as a result of multiple service-connected disabilities.” The Court added that “the Board’s approach in this case improperly focused on individual symptoms, rather than the collective impact of those symptoms on the veteran’s disability picture.” The Court thus rejected the Board’s determination that referral for extraschedular consideration was not warranted because “the Board considered only whether Mr. Cantrell had symptoms not listed in the respective evaluation criteria for each service-connected disability and not whether those disabilities collectively caused an exceptional disability picture not contemplated by the rating schedule.”

Judge Lance wrote a concurring opinion, stating his belief that “a claimant’s income – and, specifically, whether a claimant receives the same pay as similarly situated coworkers who are not disabled – is also a factor relevant to whether the claimant is employed in a protected environment.” Judge Lance noted that disability ratings are based on “the average impairments in earning capacity.” Therefore, “[i]f a claimant’s disabilities do not result in lost income, then there is no loss of earning capacity, and an award of TDIU would not be appropriate.” The concurrence also noted that the Americans with Disabilities Act requires employers to make reasonable accommodations for employees with disabilities – and that where such accommodations are made pursuant to the ADA, “a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.”

While the language of this decision is quite useful for claimants who are employed “in a protected environment” and who are seeking entitlement to TDIU, the ultimate remedy in this case was simply a remand for the Board to provide an “adequate explanation” for its decision. I believe the facts of this case and the law should have been sufficient to warrant reversal.

FULL DECISION

Bankhead: RATING MENTAL HEALTH CONDITIONS, SUICIDAL IDEATION

Bankhead v. Shulkin, docket no. 15-2404 (Mar. 27, 2017)

HELD: Under 38 C.F.R. § 4.130, “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause social and occupational impairment with deficiencies in most areas,” thus warranting a 70% disability rating – and does not require “evidence of more than thoughts,” inpatient treatment or hospitalizations, or total social and occupational impairment.

SUMMARY: Mr. Bankhead was service connected for PTSD, rated 50% disabling. His medical records were replete with evidence of suicidal ideation, but he also repeatedly denied having any plan or intent to harm himself. The Board determined that he was not entitled to a 70% rating because even though his medical records showed many of the symptoms associated with that higher rating, “those symptoms did not manifest with sufficient frequency and severity to meet the criteria for a higher evaluation.” The Board based this determination on its findings that he was at “low risk of self-harm,” was treated on an outpatient basis, was not hospitalized or subject to in-patient treatment, was credible in “his assurances that he would refrain from self-harm,” and that he “retained some social and occupational functioning.”

On appeal, the CAVC recognized that 38 C.F.R. § 4.130 “‘requires not only the presence of certain symptoms’ but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation.” *8 (citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013)). The Court discussed the “longstanding public concern over the prevalence and risk of suicide among veterans” and looked to various sources to define “suicidal ideation.” *9-10. The Court found that “suicidal ideation does not require suicidal intent, a plan, or prepatory behavior” and that “both passive and active suicidal ideation are comprised of thoughts.” *10.

The Court noted that the criteria for a 70% disability rating includes “suicidal ideation” as a symptom that is representative of “social and occupational impairment with deficiencies in most areas” and that “the presence of suicidal ideation alone” may cause such impairment. *10-11. “Suicidal ideation” is only contained in the 70% rating criteria. The Court found that the Board first erred by appearing to require “more than thought or thoughts to establish the symptom of suicidal ideation,” particularly since risk of actual self-harm is “referenced in the criteria for a 100% evaluation.” *11. The Court held that the Board’s failure to differentiate between Mr. Bankhead’s suicidal ideation and his risk of self-harm “resulted in conflation of distinct concepts” and rendered its reasons or bases inadequate. *12.

The second error identified by the Court was the Board’s finding that Mr. Bankhead was not entitled to a 70% rating because he had not been hospitalized or required in-patient treatment. Id. This imposed “a higher standard than the criteria in the DC for mental disorders,” and the Court held that “VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.” *12-14.

The third error found by the Court was the Board’s impermissible melding of the 70% and 100% criteria based on its determination that Mr. Bankhead “still retained some social and occupational functioning.” *14. The Court noted that while the 100% rating requires “total occupational and social impairment, a 70% evaluation requires only occupational and social impairment in most areas.” The Court summarized its holding by stating that

VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. [Citation omitted.] Where, as here, the Board fails to adequately assess evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole, its reasons or bases for its denial of a higher evaluation are inadequate.

*14-15.

Unfortunately, despite the ample evidence of record of suicidal ideation to support the 70% disability rating, the Court determined that the appropriate remedy was remand and not reversal to enable the Board to address the evidence of suicidal ideation and consider the potential applicability of staged ratings. *16. 

FULL DECISION

Parrott: EAJA - LOCAL V. NATIONAL CPI

Parrott v. Shulkin, docket no. 2016-1450 (Fed. Cir. Mar. 13, 2017)

HELD: Where an attorney works in multiple locations, the correct method for calculating attorney fees is the local Consumer Price Index (CPI) approach, which is based on the cost of living where the legal services were actually performed, and the EAJA application should apportion the attorney’s “time to those locations and use[] the CPI for each locality.”

SUMMARY: The Equal Access to Justice Act (EAJA) provides for an hourly rate of $125 – and allows for an adjustment to this rate to reflect the increased cost of living. The increase is based on one of two calculations: the national Consumer Price Index (CPI) or the local CPI. The national approach focuses on the “national scope of the statutory cap and the ease of computation,” whereas the local approach focuses on where an attorney works and has an office.

In this case, Ms. Parrott’s attorney has his principal office in Dallas, Texas, with additional offices in San Francisco, California and Little Rock, Arkansas. The attorney worked on Ms. Parrott’s case at all three offices. In the EAJA application, he calculated the attorney fee using the CPI rate for Washington, DC. He asserted that this was consistent with the Court’s prior holding in Mannino v. West, 12 Vet.App. 242, 243 (1999), which applied “the local cost-of-living increase actually experienced … where work was performed nationally but always before the Court in Washington, DC.” The Secretary objected to the EAJA application, asserting that the appropriate rate was the CPI for Dallas, the location of the attorney’s principal office.

The CAVC disagreed with both parties, and determined that the fairer approach was to “use the local CPI to calculate the hourly rate for each of the three locations in which [the attorney] performed work and to then review [the attorney’s] itemized billing statement and apportion each billing entry to the firm office where the work resulting in the entry was performed.” Because this approach would require the Court “to seek additional information” from the appellant and her attorney and to “calculate four separate hourly rates,” the Court declined to take on this task and instead ruled that the attorney was entitled to the statutory $125 hourly rate.

On appeal to the Federal Circuit, the attorney argued that the “EAJA does not mandate a particular method for computing attorney fees,” and because statutory ambiguity should be construed in the veteran’s favor, he should be allowed to use the CPI approach that yields the highest fee. This “optimal yield” approach would allow the attorney to use the CPI for Washington, DC. The Secretary argued that the local CPI approach is more consistent with the language of the EAJA and produces fairer results. The Secretary resisted the “optimal yield” approach, noting that the EAJA is not a veterans benefits statute. He further argued that because the EAJA “represents a waiver of sovereign immunity … [it] should be strictly construed in the government’s favor.”

The Federal Circuit examined the language of the statute, discussed the relevant case law, and determined that “the local CPI approach, where a local CPI is available … is more consistent with EAJA than the national approach.” The Court held that the CAVC did not err in ruling that the local CPI approach was the correct calculation method, and that it correctly determined that the attorney’s EAJA application should have apportioned his time to the different locations of his offices and used the CPI’s for each locale.

The Federal Circuit disagreed with the proposed “optimal yield” approach, finding nothing in the statute that would permit a claim for “the highest fee.” The Court found that this approach “runs afoul of the statutory text and EAJA’s prohibition against windfalls.” The Court added that the doctrine of resolving interpretive doubt in the veteran’s favor does not apply to EAJA because EAJA is not a veterans benefits statute.

Finally, the attorney argued that the decision to award the statutory rate of $125 per hour was an abuse of discretion because the CAVC did not permit him to resubmit a corrected EAJA application. The Federal Circuit determined that it lacked jurisdiction “to review all discretionary actions” of the CAVC, and stated that its “jurisdiction attaches when the Veterans Court commits an abuse of discretion rising to the level of legal error.” The Court found that the CAVC “did not interpret any law or regulation in declining to permit [the attorney] to resubmit a corrected EAJA application.” Rather, the CAVC simply determined that the requested fee was not reasonable and “used its broad discretion” to calculate what it deemed an appropriate fee. The Court found no legal error in the CAVC’s ruling.

FULL DECISION

Miller: RATING WHOLLY SENSORY CONDITIONS

Miller v. Shulkin, docket no. 15-2904 (Mar. 6, 2017)

HELD: The regulation for rating peripheral neuropathy provides for “a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve” and does not cover non-sensory manifestations. Nevertheless, a claimant who has sensory and non-sensory manifestations is not automatically entitled to a higher rating.

SUMMARY: Veteran Earl Miller appealed the Board’s denial of a disability rating higher than 10% for his service-connected peripheral neuropathy of the left foot. The symptoms he described in written submissions and in hearing testimony include the inability to walk more than 4-5 blocks, to stand for more than 15-20 minutes, to run, or to climb a flight of stairs. He also reported frequent stumbling and falling. A VA examiner stated that he had a noticeable limp, walked with a cane, and had difficulty standing because of the peripheral neuropathy. The examiner stated that he did not feel that Mr. Miller was employable because of his peripheral neuropathy.

At a Board hearing, he described his symptoms and stated that he used a cane regularly. His wife testified that he fell at least three times a day and that she had stopped working to take care of him. The Board denied a disability rating higher than 10%.

Peripheral neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8620. For all peripheral nerve conditions, the regulation states: “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” 38 C.F.R. § 4.124a. This issue in this case is whether peripheral nerve conditions that are more than “wholly sensory” must be automatically rated, at a minimum, as “moderately severe.” Mr. Miller argued that because the regulation applies to peripheral nerve disorders that are “wholly sensory,” conditions that are more than wholly sensory must be rated at least “moderately severe,” which warrants a 40% disability rating under VA’s rating schedule. The Secretary argued that the language in the regulation created a maximum disability rating for wholly sensory conditions – not a minimum for conditions that are more than sensory.

The Court first acknowledged that Mr. Miller’s condition is more than “wholly sensory.” The Court examined the language of the regulation and determined that it “provides only a maximum disability rating for wholly sensory manifestations” and “contains no mention of non-sensory manifestations.” The Court found that the provision of a maximum 20% disability rating for wholly sensory manifestations did not entitle a claimant with more than sensory manifestations to a higher rating.

Mr. Miller had also argued that VA’s Adjudication Procedures Manual (M21-1) support his position because it defined both mild and moderate symptoms in “wholly sensory” terms, but it defined “severe” symptoms as involving “more than sensory findings . . . such as atrophy, weakness, and diminished reflexes.” The Court determined that it did not have to consider the M21-1 provision, since it already concluded that the language of the regulation was clear. The Court further noted that the Secretary changed the language in the M21-1 after the parties filed their briefs in this case – and that the new portion now states that the regulation does not mean that any non-sensory impairment “must be evaluated as greater than moderate.”

The Court discussed the Board’s rationale for its determination that Mr. Miller was not entitled to a higher rating, and found that the Board had considered the objective and subjective evidence of record and adequately explained its decision.

FULL DECISION

Doucette: RATING HEARING LOSS

Doucette v. Shulkin, docket no. 15-2818 (Mar. 6, 2017)

HELD: “[T]he rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment,” but do not explicitly contemplate “other functional effects, such as dizziness, vertigo, ear pain, etc.” – and the Board does not have to assess whether referral for extraschedular consideration is warranted unless this is raised by the claimant or the evidence of record.  

SUMMARY: Veteran Richard Doucette appealed the Board’s denial of a compensable disability rating for his hearing loss, arguing that the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to adequately explain its determination that referral for extraschedular consideration was not warranted.

The Court first noted that VA’s “rating criteria for hearing loss, unlike a majority of the conditions in VA’s rating schedule, do not list any specific symptoms or functional effects.” *3 (citing 38 C.F.R. §§ 4.85, 4.86). Instead, VA rates this condition based on a “mechanical application of a veteran’s audiometric testing results to a rating table.” The testing includes puretone audiometry and speech discrimination that “measure a veteran’s ability to hear certain frequencies at specific volumes and to understand speech.” *4. VA’s rating tables “correlate the results of audiometric testing with varying degrees of disability.” The Court thus held that VA’s “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.” *4-5.

The Court determined, however, that the rating criteria do not account for other functional effects, “such as dizziness, vertigo, ear pain, etc.” – and further held that the rating schedule did not explicitly contemplate “effects other than difficulty hearing or understanding speech.” *5. Nevertheless, the Court found that referral for extraschedular consideration was not warranted in all hearing loss cases, and that the “Board is only obligated to discuss extraschedular referral for hearing loss when there is evidence in the record which reveals that the appellant’s hearing loss presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate.” *6-7.

The Court reiterated that it was not suggesting “that the rating criteria contemplate all functional impairment due to a claimant’s hearing loss.” The Court pointed out that “a hearing loss claimant could provide evidence of numerous symptoms,” such as “ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects.” *8.

The Court found that Mr. Doucette’s hearing difficulties were “contemplated by the schedular rating criteria for hearing loss” and that he had not asserted that his schedular rating was inadequate. The Court thus affirmed the Board’s determination that referral for extraschedular consideration was not warranted. *9.

In dicta, the Court commented that the rating criteria for hearing loss “has led to confusion and inconsistent results for both veterans suffering from hearing loss and adjudicators evaluating their claims,” and questioned “whether it is time for VA to revisit this portion of the rating schedule.” *11.

Judge Schoelen dissented. Although she agreed with the majority that referral for extraschedular consideration was not warranted unless it was raised by the claimant or the record, she believes that the rating criteria for hearing loss “are inadequate to contemplate a veteran’s functional effects and entire disability picture.” She stated that “[b]ecause no symptoms are listed in the rating schedule for hearing loss, there is no way to adequately compare the ‘level of severity and symptomatology’ to the rating criteria,” which is required in determining whether referral for extraschedular consideration is warranted. She pointed out the Court’s prior holding that stated “[u]nlike 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.” * 13 (quoting Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007).  

Advocacy note: Even though VA is required by law to construe a claimant’s submissions liberally and assist in developing a claim – and even though VA adjudicators are required to understand the intricacies of VA law and its rating schedule – this decision emphasizes (or maybe even adds to?) the claimant’s burden in establishing entitlement to an appropriate disability rating. One significant flaw in this decision is that it presumes that claimants understand the meaning of “referral for extraschedular consideration” and how to request it, which is a pretty big presumption to impose on claimants seeking benefits in an allegedly claimant-friendly system. In light of this decision, claimants should clearly identify all symptoms related to hearing loss – and, if the rating schedule is not adequately reflecting the level of disability, explain why and request referral for extraschedular consideration.

FULL DECISION

Cook: ADDITIONAL BOARD HEARING FOLLOWING COURT REMAND

Cook v. Snyder, docket no. 15-0873 (Jan. 31, 2017)

HELD: Under 38 U.S.C. § 7107(b), “a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings in entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim.”

SUMMARY: Mr. Cook was denied service connection for a back condition in 2000. He did not appeal that decision and it became final. In 2006, he filed a request to reopen his claim. The Regional Office (RO) denied the request, determining that he had not submitted new and material evidence that would warrant reopening. He appealed to the Board and testified at a hearing in 2012. The Board determined that new and material had been submitted to reopen the claim, and remanded the issue back to the RO, along with the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The RO continued to deny the claim, and Mr. Cook requested a Board hearing so that he could submit additional evidence. In 2014, the Board acknowledged Mr. Cook’s request for a hearing, but denied the request because he had already been afforded one.

Mr. Cook appealed to the CAVC and the parties entered into a joint motion for remand (JMR) based on the Board’s failure to address favorable a private medical opinion. In November 2014, Mr. Cook again requested a Board hearing so that he could submit additional evidence. In February 2015, the Board denied service connection and TDIU. The Board again acknowledged his hearing request, but stated that the pertinent regulation provides for “a” hearing on appeal, and he already was afforded a hearing.

On appeal to the CAVC, Mr. Cook argued that because he had a protected property interest in obtaining VA benefits, the Board’s denial of a hearing following a remand violated his constitutional due process right to be heard. The Court ordered the parties to submit supplemental memoranda of law regarding any regulatory or non-constitutional authority that addressed a claimant’s right to more than one hearing. Mr. Cook argued that VA’s regulations do not expressly limit a veteran’s right to multiple hearings, specifically asserting that the “indefinite article ‘a’ in [38 C.F.R.] § 20.700(a) does not limit a claimant to one hearing.”

The Secretary argued that neither the statute (38 U.S.C. § 7107) nor the regulation provides for a Board hearing in this situation, asserting that “the indefinite article ‘a’ usually connotes the singular.” He noted that other regulations provide for new hearings “only in certain circumstances not implicated here.” He asserted that even if the statutory and regulatory language were ambiguous, the Court should defer to his interpretation, adding that there are currently thousands of pending Board hearings and allowing for multiple hearings in situations like these “would intolerably burden the system and violate the general rule that agencies are entitled to discretion in implementing their own procedures.” 

The Court first discussed the history of 38 U.S.C. § 7107 and explained the importance of hearings in the VA adjudication process. The Court next considered the statutory language (“The Board shall decide any appeal only after affording the appellant an opportunity for a hearing”) and found that it was ambiguous because it did not “specify that a claimant is limited to one Board hearing irrespective of the number or remands he or she is granted nor does it unambiguously specify that a claimant is entitled to a Board hearing upon request each time a remand is granted.”

The Court did not defer to the Secretary’s interpretation because it found that no VA regulation “resolves the ambiguity in the statute” and because VA’s regulation, 38 C.F.R. § 20.700(a), was promulgated before the statute was enacted. The Court noted that “the statute was enacted to codify the regulatory hearing rights before the Board.” (Emphasis in original.) Therefore, this regulation “cannot possibly have been promulgated to interpret it.” The Court concluded that the Secretary’s interpretation was not persuasive and held that “a VA claimant who has had a Board hearing during one stage in the appellate proceedings is not barred from receiving a Board hearing when the claim is at a different stage in the proceedings, namely, following a remand from this Court.”

The Court further analyzed the statutory language under a less deferential standard, focusing on “its context and with a view to its place in the statutory scheme.” The Court noted that “the VA adjudicatory process ‘is designed to function throughout with a high degree of informality and solicitude for the claimant’” and found that “[r]eading section 7107(b) as barring a claimant who has previously testified at a Board hearing from receiving a Board hearing during a subsequent stage of appellate proceedings – particularly following a remand from this Court – would be neither solicitous of a claimant nor productive of informed Board decisionmaking.”

The Court pointed out that the appellate issue(s) “may change or evolve as a claim wends its way through the VA claims and appeals process” – which is precisely what happened in Mr. Cook’s case. The issue on appeal at the time of his Board hearing was whether new and material evidence had been submitted to reopen his claim. By the time he requested the additional hearing in 2014, the issue had changed to whether the new and material evidence was sufficient to establish entitlement to service connection for a back condition. The Court reiterated its holding as properly interpreting section 7107(b) to allow “a VA claimant the right to request and receive a Board hearing for the purpose of submitting additional evidence after a remand from the Court, even if he or she previously received a hearing before the Board at another stage of appellate proceedings.”

The Court added that “this case implicates the presumption announced in Brown v. Gardner, 513 U.S. 115, 118 (1994), that any doubt in the interpretation of a VA statute must be resolved in favor of a veteran,” and noted that “even where the Secretary’s asserted interpretation is ‘plausible,’ adopting an interpretation that is less favorable to the veteran would be appropriate ‘only if the statutory language unambiguously’ required that less favorable interpretation.” The Court found that the Secretary’s interpretation was not required by the statutory language and was less favorable to the veteran.

Finally, the Court addressed the Secretary’s concerns regarding the burden these additional hearings would impose on VA. The Court stated that it “is not adopting the veteran’s reading of the statute, that he is entitled to a Board hearing at any time on any issue for any reason.” Rather, the Court again reiterated its holding that “a claimant who received a personal hearing at one stage of appellate proceedings before the Board is not barred from requesting and receiving a Board hearing during a separate stage of appellate proceedings before the Board, namely, following a remand from this Court.” The Court added that it “is not convinced that its holding will lead to a wave of requests for additional Board hearings,” noting that a claimant will weigh the right to request an additional Board hearing against the inherent delay in issuing a decision that will be caused by the request.

The Court added that if the Secretary disagrees with the Court, he is free to promulgate a new regulation that resolves the statutory ambiguity. The Court restated its holding again, “under section 7107(b), a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim."

Advocacy note: The Court restated the holding of this case at least four times. Read together, the criteria for obtaining an additional Board hearing require that the claimant must (1) request the hearing in writing (2) at a subsequent stage of proceedings (3) following a Court remand of the same claim (4) for the purpose of submitting additional evidence.

FULL DECISION

Kays: CREDIBLE SUPPORTING EVIDENCE, 38 C.F.R. § 3.304(f)

Kays v. Snyder, docket no. 2016-1314 (Fed. Cir. Jan. 25, 2017)

HELD: The Court reviews the question of whether a veteran has submitted “credible supporting evidence” to support the occurrence of a claimed PTSD stressor event under the “clearly erroneous” standard of review.

SUMMARY: Charles Kays sought service connection for PTSD based on two non-combat stressor events. In one event, he claimed he was stabbed during a fight. In another, he claimed that while he was taking diving lessons off duty, he assisted in recovery efforts after a helicopter crash. To establish the occurrence of these events, he submitted lay statements, testimony, and a newspaper article regarding the helicopter crash. The article said nothing about recovery assistance provided by diving students. 

The Board denied his claim because he did not present evidence to support the occurrence of these stressor events. The Board rejected the lay statements because they were unsupported and contradicted by other evidence of record. The Board rejected the credibility of his testimony regarding the helicopter crash recovery because of the “lack of supporting detail in the article, his delay in reporting the event, and his changing and inconsistent story.”

On appeal to the CAVC, Mr. Kays argued that the Court “should review de novo the Board’s decision on whether a veteran has submitted credible supporting evidence that a claimed in-service stressor occurred.” The CAVC rejected this argument, finding that question to be a factual one that is reviewed under the “clearly erroneous” standard of review. Mr. Kays appealed to the Federal Circuit, and the Federal Circuit agreed with the CAVC.

The regulation in question, 38 C.F.R. § 3.304(f) requires that a non-combat veteran seeking service connection for PTSD provide “credible supporting evidence that the claimed in-service stressor occurred.” Mr. Kays argued that this requirement is an evidentiary burden that the Court should review de novo. The Federal Circuit found that while this requirement does impose an evidentiary burden on the claimant, this is “a quintessential factual inquiry” and “precisely the type of factual determination that the Board is tasked with making” and that “the Veterans Court reviews for clear error.”

The Court further noted that de novo review is reserved for situations where the Board “has explicitly interpreted a statute or regulation ‘concerning the correct standard for service connection’” or is “establishing a legal rule to be applied to similar fact situations in future cases.” The Court found that the Board “made quintessential factual determinations regarding Mr. Kays’s evidence, statements, and credibility, and found that he was not entitled to service connection.” The Court thus held that the CAVC “appropriately reviewed these factual determinations under the clearly erroneous standard.”

At oral argument, the veteran asserted that the regulation “requires only evidence that the ‘stressor occurred,’ not that it occurred to the veteran.” (emphasis in original). The Court rejected this argument, stating that the regulation requires “credible supporting evidence that the claimed in-service stressor occurred.” Mr. Kays’s claimed in-service stressor involved his participation in the recovery efforts following a helicopter crash. The regulation thus required him “to submit credible evidence that he was involved in search and rescue activities and not simply that a civilian helicopter crash occurred.”

The Court also rejected Mr. Kays’s argument that his current PTSD diagnosis “assures that the in-service stressor occurred to the veteran,” finding that “a physician’s diagnosis of PTSD does not necessarily identify what stressor caused it.” The Court stated that “the regulation requires the veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred.” The Federal Circuit thus held that the CAVC “applied the proper standard of review” and affirmed its decision “because § 3.304(f) requires credible supporting evidence that the claimed in-service stressor occurred as claimed by the veteran.”

Advocacy note: The focus of this case is on the CAVC’s standard of review of the Board’s factual determination as to whether a veteran has submitted “credible supporting evidence that the claimed in-service stressor occurred.” The CAVC has previously held that the requirement of corroborating evidence under 38 C.F.R. § 3.304(f) does not require “corroboration of every detail including the appellant’s personal participation in the [event].” Suozzi v. Brown, 10 Vet.App. 307, 311 (1997); see also Pentecost v. Principi, 16 Vet.App. 124, 129 (2002) (holding that § 3.304(f) “only requires, as to stressor corroboration, ‘credible supporting evidence’ that the claimed in-service stressor occurred”).

In both Suozzi and Pentecost, the Court held that where there was corroborating evidence of the occurrence of a stressor event, the veteran’s personal involvement could, in certain circumstances, be inferred from the evidence. In Suozzi, the corroborating evidence showed that the veteran’s unit in Vietnam experienced casualties from an attack – and the Court could infer from this evidence that even a “company clerk [the claimant] would assist in the casualty identification.” Suozzi, 10 Vet.App. at 310-11. In Pentecost, the corroborating evidence showed that the veteran was stationed with a unit in Vietnam that experienced rocket attacks – and the Court found that this evidence “strongly suggest[s] that he was, in fact, exposed to the attacks.” Pentecost, 16 Vet.App. at 128.

Although the Federal Circuit in Kays did not mention Suozzi or Pentecost, its decision appears to undermine the holdings of those two cases. One distinguishing factor is that the stressor events in Kays occurred while the veteran was off duty, and, therefore, there were no service records to corroborate these events – whereas the events in Suozzi and Pentecost were corroborated by service records showing that the claimed events actually happened to the claimants’ units, and the Court could thus infer the claimants’ participation in those events.

As a practical matter, advocates should explain the credible, corroborating facts of their cases at the agency level – and, if denied, should argue at the Court that the Board’s rejection of that credible, corroborating evidence was clearly erroneous.

FULL DECISION

Vilfranc: RATING TMJ

Vilfranc v. McDonald, docket no. 15-0904 (Jan. 5, 2017)

 

HELD: The diagnostic code for temporomandibular joint dysfunction (TMJ), 38 C.F.R § 4.150, Diagnostic Code (DC) 9905, allows for “only a single disability rating for limitation of inter-incisal motion.” 

SUMMARY: Veteran Mary Vilfranc appealed a Board decision that denied entitlement to a disability rating in excess of 10% for TMJ, arguing that she was entitled to separate disability ratings for each joint.

The Secretary argued that Ms. Vilfranc was not entitled to an additional rating because she had not shown that she has more than one distinct disability. The Secretary also argued that DC 9905 supports the assignment of a single rating because the temporomandibular joints operate as a single unit.

In her reply brief, Ms. Vilfranc argued that 38 C.F.R. § 4.59 supported the assignment of separate compensable ratings because she experienced pain in each joint.

The Court first discussed the “location and function of the temporomandibular joints,” explaining that the temporomandibular is the combination of three facial bones – the mandible and two temporal bones – that are connected and act in concert, aided by the temporomandibular joint on each side. The Court rejected Ms. Vilfranc’s argument under 38 C.F.R. § 4.59, stating that this regulation provides for a minimum compensable rating for a joint that is actually painful even when evaluating a condition that is not predicated on range of motion – and that she is already in receipt of the minimum compensable rating (10%) for actual limitation of motion. The Court reiterated, “§ 4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where, as here the claimant already has a compensable level of limitation of motion.”

The Court then addressed whether the Secretary’s interpretation of DC 9905 – as limiting a claimant to a single disability rating for TMJ – was reasonable and thus entitled to deference. Relying, on the Federal Circuit’s opinion in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), which dealt with a similar argument regarding the assignment of a single disability rating for tinnitus even when the condition is experienced in both ears, the Court determined that the regulation in question was ambiguous, but that the Secretary’s interpretation was reasonable, even though it was offered for the first time in a brief. The Court concluded that “a claimant is entitled to only a single disability rating for limitation of inter-incisal motion under 38 C.F.R. § 4.150, Diagnostic Code 9905.”

FULL DECISION

 

 

 

RATING MUSCULOSKELETAL DISABILITIES; 38 C.F.R. § 4.59

Southall-Norman v. McDonald, docket no. 15-1357 (Dec. 15, 2016)

HELD: VA regulations require the award of a minimum compensable disability rating where there is “evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC [Diagnostic Code],” regardless of whether that DC is “predicated on range of motion measurements.” 

SUMMARY: Veteran Crystal D. Southall-Norman was granted service connection for bilateral hallux valgus and hemorrhoids, rated 0% for both conditions. She appealed for compensable ratings, and the Board granted 10% for the hemorrhoid condition and remanded the bilateral foot issue for another examination. She appealed the issue of the 10% hemorrhoid rating to the Court, and the parties entered into a Joint Motion for Remand stipulating that the Board failed to consider whether she was entitled to a separate compensable rating based on loss of sphincter control. The JMR directed the Board to address Ms. Southall-Norman’s reports of fecal leakage and consider the credibility and probative value of those reports in light of the fact that the relevant Diagnostic Code (38 C.F.R. § 4.114, DC 7332) does not require that such leakage “be confirmed by objective findings.”

Meanwhile, Ms. Southall-Norman was afforded another C&P examination for her feet. The examiner diagnosed bilateral pes planus and opined that this condition was related to her service-connected bilateral hallux valgus. The RO granted service connection for bilateral pes planus, rated 50% disabling under 38 C.F.R. § 4.71a, DC 5276 (flatfoot, acquired), effective June 2, 2014, the date of the C&P examination.

The appeal returned to the Board, which denied a compensable rating for her foot condition prior to the date of the C&P examination, under either DC 5276 (flatfoot) or 5280 (hallux valgus), because her symptoms were only mild or moderate symptoms during that time. The Board did not mention 38 C.F.R. § 4.59 (“painful motion”) in evaluating her foot condition. The Board also determined that she was not entitled to a separate rating for sphincter impairment because her reports of fecal leakage were “inconsistent” and “contradicted by the medical evidence of record.” The Board found that she “did not always differentiate between fecal leakage and other types of leakage,” and determined that her reports of fecal leakage “were insufficient to demonstrate constant slight or occasional moderate fecal leakage required for a compensable evaluation under DC 7332.”

In this present decision, the Court first addressed the foot condition and the appellant’s argument that the Board failed to discuss 38 C.F.R. § 4.59. The Secretary argued that the Board was not required to discuss § 4.59 because this regulation only applies when evaluating a joint disability under a DC based on range of motion. Because the relevant DCs in this case - DCs 5276 and 5280 - do not mention range of motion, the Secretary asserted that the Board need not discuss § 4.59. In her reply brief, Ms. Southall-Norman argued that the Secretary’s interpretation was inconsistent with the plain language of the regulation, which did not expressly limit itself to conditions based on range of motion. Alternatively, she argued that the Court should not defer to the Secretary’s interpretation because the Secretary had taken contrary positions in other cases.

The Court examined the language of the regulation and held that the “plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.” The Court added:

§ 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.

The Court further determined that even if § 4.59 was ambiguous, the Court would not defer to the Secretary’s interpretation “because it does not reflect the agency’s considered view on the matter, as he has not consistently adhered to that interpretation.” To support this conclusion, the Court pointed to the Secretary's contrary position taken during oral argument on another case, as well as a number of single judge (i.e., nonprecendential) decisions.

Advocacy Note: The Court’s Rules allow for citation to nonprecedential authority “for the persuasive value of their logic and reasoning” and only if “no clear precedent exists on point and the party includes a discussion of the reasoning as applied to the instant case.” U.S.C.A.V.C. Rule 30(a).

With respect to a separate compensable rating for sphincter control, the Court determined that the Board did not adequately explain its rejection of Ms. Southall-Norman’s lay statements. More specifically, the Court rejected the Board’s credibility determination. The Court identified one of the “putative inconsistencies” noted by the Board and determined that it was consistent with her prior statement. The Court also found that the Board improperly questioned the credibility of Ms. Southall-Norman’s lay statements as inconsistent with a C&P examiner’s finding because the Board failed to acknowledge other evidence that was consistent with her statement. The Court held that “[a]lthough the Board is allowed to find a veteran not credible based on inconsistencies between medical evidence and lay evidence, . .. it must account for the potentially favorable material evidence of record when doing so.” The Court remanded both issues to the Board.

Advocacy Note: Although the primary holding of this case is that § 4.59 must be considered in evaluating all musculoskeletal disabilities – not just those predicated on range of motion – I found the Court’s review of the Board’s credibility determination to be refreshing. Instead of simply deferring to the Board’s “fact finding,” the Court carefully examined the evidence and rejected the Board’s determination that it was inconsistent with the appellant’s statements. The Court's language regarding the Board's duty to "account for potentially favorable material evidence of record" in making a credibility determination will be useful to advocates in cases where the Board appears to cherry-pick and/or mischaracterize the evidence of record.

FULL DECISION

NO ENTITLEMENT TO ATTORNEY FEES

Cornell v. McDonald, docket no. 15-3191 (Dec. 12, 2016)

HELD: Attorney is not entitled to additional attorney fees on award for a total disability rating based on individual unemployability (TDIU) when the attorney did not raise the issue of TDIU during the underlying claim/appeal process and abandoned the client prior to the application for TDIU.

SUMMARY: Attorney Catherine Cornell represented veteran Bobby Moberly in his appeal for service connection for hearing loss and tinnitus. The scope of their fee agreement covered representation on “all issues . . . including obtaining the maximum rating available . . . and any other claim or benefit reasonably raised by the evidence,” and provided for a contingency fee of 20% of all awards of retroactive benefits. 

After the Board of Veterans’ Appeals granted the appeals, the RO implemented the decision and assigned an 80% disability rating for hearing loss and 10% for tinnitus. The rating code sheet of the decision noted that Mr. Moberly was now eligible for TDIU, but stated that “there is no evidence showing he is unable to work due to these disabilities.” The decision resulted in an attorney fee of over $18,000 that VA properly withheld from Mr. Moberly’s retroactive award and paid to Ms. Cornell. In November 2011, Cornell notified the veteran that she was closing his file because “there is no further work to be done on your claim.”

Moberly then appointed Disabled American Veterans (DAV) to represent him and, through DAV, submitted an application for TDIU and a letter from his doctor stating that he was unable to work because of his severe hearing loss. On May 4, 2012, the RO granted TDIU, effective 2006. On May 8, 2012, the notified Ms. Cornell that it was withholding an attorney fee of $20,204.16, which was released to her on July 24, 2012. On July 31, 2012, DAV submitted a Notice of Disagreement with the May 8 attorney-fee decision.

In December 2012, the RO notified Ms. Cornell that it had paid her in error, and stated that she should “settle this debt with Mr. Moberly.” Ms. Cornell appealed this decision. In September 2014, the RO issued a Statement of the Case, concluding that Ms. Cornell was not entitled to the $20,204.16 attorney fee.

In October 2014, Mr. Moberly requested that the RO expedite the appeal, and provided information about Ms. Cornell’s actions following her receipt of the $20,204.16 attorney fee. Mr. Moberly stated that Ms. Cornell called his wife after she had received the fee to find out “what was going on” and, when she realized that they did not know about the second attorney fee, said she wanted to send him new representation paperwork (“to get her back on my case”).

In April 2015, the Board of Veterans’ Appeals determined that the fee dispute was not a “simultaneously contested claim” and found that the payment to Ms. Cornell was improper. Ms. Cornell appealed to the Veterans Court in August 2015. In September 2015, VA paid Mr. Moberly $20,204.16. VA later informed the Court that it had failed to provide DAV with the May 2012 RO decision, suggesting that the decision was, therefore, not final.

On appeal to the CAVC, Ms. Cornell argued that she was entitled to the attorney fees because she represented Mr. Moberly in the underlying appeal that formed the basis of his entitlement to TDIU. The Secretary argued that Ms. Cornell did not raise the issue of TDIU during her representation and was, therefore, not entitled to attorney fees on that award. Mr. Moberly filed a brief as an intervenor in this appeal, arguing that Ms. Cornell was not entitled to the fee because she did nothing to earn it.

In its decision, the Court noted that Ms. Cornell presented a number of jurisdictional and procedural arguments, but found that the case involved “rather simple, undisputed facts” regarding her entitlement to the second attorney fee. The Court determined that she was not entitled to the second attorney fee because she did not contribute any argument or evidence that resulted in the award of TDIU to Mr. Moberly. The Court noted Ms. Cornell’s reliance on Mason v. Shinseki, 13 Vet.App. 79, 86 (1999), in which it had previously held that if eligibility for TDIU was raised during the underlying claim, then it is part of the initial rating and the attorney would be entitled to 20% of that award. But that was not the case here – because Ms. Cornell did not raise the issue of TDIU as part of Mr. Moberly’s underlying appeal.

Regarding Ms. Cornell’s jurisdictional arguments, the Court characterized these concerns as “an effort to obfuscate the problem she had by accepting payment for work that she did not do.” She had argued that the Board did not have jurisdiction to address the fee-eligibility issue since the relevant statute does not require VA to actually make such a determination and, thus, the Board’s review is simply “limited to ensuring compliance with the statutory and regulatory requirements.” The Court rejected this argument, finding that

[b]ecause an attorney may receive “only a fee that fairly and accurately reflects his [or her] contribution to and responsibility for the benefits awarded,” . . . the Board may consider not only the statutory and regulatory requirements of [38 U.S.C. §] 5904(d) and [38 C.F.R. §§] 14.636(e) and (h) with respect to eligibility for and reasonableness of fees, but the Board may also consider other factors pertinent to the specific circumstances of the case.

The Court also determined that this case did involve a “simultaneously contested claim” since the award of $20,204.16 to Ms. Cornell resulted in the payment of a lesser amount to Mr. Moberly, and that the Board thus erred in this portion of its decision. Ms. Cornell had argued that remand would be warranted, as she did not receive a Statement of the Case (SOC) that was required by the statute governing simultaneously contested claims. The Court disagreed, and determined that remand was not warranted because Ms. Cornell failed to “demonstrate that she suffered any prejudice” by any possible VA error in not providing her with an SOC.

Finally, the Court addressed Ms. Cornell’s equitable defense of laches against the Secretary “for his delay in seeking recoupment of the attorney fees.” The Court found that she failed to “demonstrate that laches applies in situations such as this where the Secretary acted to correct his error within a year.” The Court added that even if the laches defense applied, “Ms. Cornell does not come to the Court with clean hands” and is thus “precluded from asserting the equitable defense of laches.”

In summary, the Court concluded that VA’s payment of $20,204.16 to Ms. Cornell was improper and ordered VA to not recoup the fees from Mr. Moberly. The Court did, however, suggest that VA “may take all appropriate steps to recover the indebtedness from Ms. Cornell.”

FULL DECISION

DISABILITY RATING, HYPERTENSION

McCarroll v. McDonald, docket no. 14-2345 (en banc) (Nov. 7, 2016)

HELD: Because the diagnostic code for hypertension (38 C.F.R. § 4.104, DC 7101) specifically discusses the effects of medication, the Board was not required to consider whether a compensable rating would be warranted if the veteran was not medicated.

SUMMARY: Veteran Billy D. McCarroll appealed the Board’s denial of a compensable disability rating for his service-connected hypertension, arguing that the Board “failed to discount the ameliorative effects of his blood pressure medication.” Without his medication, he argued, his blood pressure would be at compensable levels. For support, Mr. McCarroll cited Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), which held that the Board cannot deny a higher disability rating based on symptoms that are relieved by medication when the diagnostic code does not contemplate the effects of medication on the condition.

The Court held that Jones did not apply in this case because the diagnostic code for hypertension, DC 7101, expressly considers the effects of medication. DC 7101 provides for a 10% disability rating if (1) diastolic pressure is predominantly 100 or more OR (2) systolic pressure is predominantly 160 or more OR (3) “for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.” Although Mr. McCarroll did require medication for his hypertension, his medical records did not show a history of diastolic pressure at 100 or more or systolic pressure at 160 or more. Because of this, the Court further held that the Board did not err when it determined that Mr. McCarroll’s symptoms did not more nearly approximate the criteria for a 10% disability rating. The Court also rejected his argument that he was entitled to referral for extraschedular consideration because he did not raise that issue at the Board or the RO.

In a concurring opinion, two judges argued that Jones should be overturned as it is “predicated on a misunderstanding of the rating schedule.” These judges note that “although some diagnostic codes mention the fact of medication usage as a rating criterion, none require the Board to make any affirmative use of information about the ‘ameliorative effects’ of the medication.” They also note that the Jones holding “invites medical speculation in trying to guess what a veteran’s symptoms might be without the medication, or medical malpractice in the cessation of medication so that the veteran’s symptoms without medication might be recorded.”

In a dissenting opinion, two other judges found that DC 7101 provided three alternative paths to a 10% disability rating – and only one of those “contemplates the ameliorative effects of medication.” The dissenting judges would have held that Jones applies to this case and that the Board erred when it failed to consider the ameliorative effects of medication under the first two paths to a 10% rating under DC 7101.

FULL DECISION