EXTRASCHEDULAR; COMBINED EFFECT OF MULTIPLE DISABILITIES

Yancy v. McDonald, 27 Vet.App. 484 (Feb. 26, 2016)

HELD: “[T]he Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.”

SUMMARY: Mr. Yancy was service connected for bilateral foot conditions, including pes planus, rated 10%, and hallux valgus of the left and right great toes, rated 0%. He appealed and the Board ultimately awarded a 30% rating for his bilateral pes planus under DC 5276. The Board also denied a compensable rating for his hallux valgus, finding that he did not meet the criteria for a compensable rating under DCs 5277 through 5284, and found that referral for extraschedular consideration was not warranted.

On appeal, Mr. Yancy argued that the Board failed to adequately explain why he was not entitled to higher or additional disability ratings under DC 5281 (for hallux rigidus) or DC 5284 (for “foot injuries, other”), and failed to properly assess whether referral for extraschedular consideration was warranted.

The Court agreed. DC 5281, for “hallux rigidus, unilateral, severe,” requires the condition to be rated as “severe hallux valgus under DC 5280.” The Board determined that Mr. Yancy was not entitled to a rating under DC 5281 because “it found that he had not been diagnosed with hallux rigidus.” However, the record contained a diagnosis of “hallux valgus et rigidus on both sides” that the Board failed to address. Because of this, the Court found the Board’s reasons or bases inadequate and remanded for the Board to discuss whether this evidence contains a diagnosis of hallux rigidus and, if so, whether it is severe enough to warrant a compensable rating.

The Court similarly found that the Board failed to adequately explain its denial of an evaluation under DC 5284, the DC for “foot injuries, other.” The Court noted that it had recently considered the word “other” in that DC in Copeland v. McDonald, 27 Vet.App. 333, 337-38 (2015). In this case, the Court turned its attention to the word “injury,” and held that “the plain meaning of the word ‘injury’ limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions.” The Court found that Mr. Yancy “has been diagnosed with conditions not explicitly listed in the rating schedule,” and that the Board failed to discuss whether those “unlisted conditions could be rated by analogy pursuant to DC 5284.” The Court thus remanded for the Board to address this question.

Finally, the Court found that the Board failed to adequately explain its extraschedular determination in light of the Federal Circuit’s holding in Johnson v. McDonald, 462 F.3d 1362 (Fed. Cir. 2014), which states that “§ 3.321(b)(1) provides for extra-schedular consideration based on the collective impact of multiple disabilities.” The Court first discussed the three-part extraschedular analysis required by Thun v. Peake, 22 Vet.App. 111, 115 (2008), which requires adjudicators to refer a case for extraschedular consideration if (1) the evaluation in the rating schedule does not contemplate the severity of the claimant’s disability level or his/her symptoms and (2) the claimant’s overall disability picture involves other factors such as “marked interference with employment” or “frequent hospitalizations.”

The Court stated that the “first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.” The Court added that an error on one element does not necessarily affect the analysis of the other element, and that if “either element is not met, then referral for extraschedular consideration is not appropriate.”

The Court held that “the Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities.” In this case, Mr. Yancy acknowledged that he did not expressly raise the issue of extraschedular consideration to the Board. However, the Court found that the issue was reasonably raised by the record and that “the Board erred by failing to discuss the combined effects of Mr. Yancy’s disabilities in its analysis.”

FULL DECISION