Rossy: Hearing Loss and Referral for Extraschedular Consideration, Reconsidered

Rossy v. Shulkin, Case Number 16-0720, decided December 13, 2017 considers whether a claim for hearing loss should be referred for extraschedular consideration. 

The Court determined this case was controlled by Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Essentially Doucette concerned a case where the scheduler rating for hearing loss was not dispute but the veteran believed it should have been referred for extraschedular consideration.  In Doucette the Court noted the Board only has to consider referral for extraschedular consideration when there is evidence in the record showing exceptional or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate. 

The Court here, said Doucette controls and noted the only particularized hearing problem was understanding conversations, particularly in noisy or crowded circumstances.  The Court noted that referral for extraschedular considerations might be necessary based on a collective impact of multiple disabilities but states the veteran’s attorney did not raise such an argument in his opening brief and such omission constitutes abandonment.  It further notes that even reviewing the record, the Court found no indication the veteran explicitly asserted the combined effects of bilateral hearing and his PTSD required extraschedular considerations nor reasonably raised the issue before the Board.

Judge Greenberg dissented and wrote the record reasonably raised the collective impact issue because the appellant has difficulties communicating because of his hearing loss and reported his PTSD causes feelings of detachment and estrangement from others. 

The lesson from this case might be to explicitly raise a combined effect argument when seeking extraschedular consideration.  However, the case also displays the Court taking a narrow view of what was raised by the veteran and before the Board, a concern when so many veterans are not represented by attorneys.

Decision by Judge Toth and joined by Judge Bartley.  Dissent by Judge Greenberg

Lyles: The Interplay Between DC’s in Knee Claims and Pyramiding

Lyles v. Shulkin, Case Number 16-0994, decided December 29, 2017 examines whether a veteran should also have received a rating under DC 5258 or 5259 in addition to ratings under DC 5257 and 5261.

DC 5258 and 5259 concern the dislocated or removed cartilage.  DC 5257 involves subluxation or instability and DC 5261 concerns extension.  The veteran received ratings for instability and limited extension under DC 5257 and 5261, but also sought a rating under either DC 5258 or 5259.

The Board found evidence of removal of semilunar cartilage. And,

acknowledged that the veteran experienced popping, locking, grinding, pain, swelling, looseness, and giving way or falling related to semilunar cartilage removal, but found that a separate evaluation under DC 5259 was not warranted because each of those symptoms was already “encompassed" by his current evaluations under DCs 5257 and 5261. Specifically, the Board indicated that the veteran's pain, swelling, looseness, and giving way or falling had been attributed to left knee lateral instability and were the very symptoms that formed the basis for the 30% evaluation under DC 5257.  Similarly, the

Board found that, because popping, grinding, and locking were symptoms of impaired motion, they were contemplated in the evaluation criteria for DC 5261 and had already "been considered in conjunction with the potential further impairment of motion" pursuant to DeLuca. The Board's DeLuca analysis consists primarily of its observation that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups, and the April 2010 and August 2015 examiners both commented that they could not say without resort to speculation what such impairment would be." Ultimately, the Board concluded that a separate left knee evaluation under DC 5259 would constitute impermissible pyramiding and denied the claim.

Id. at *4. 

The Court held that as a matter of law evaluation of a knee disability under DC 5257 or 5261 does not preclude a rating under either DC 5258 or 5259.   The Court noted “The crux of the Secretary's argument that, as a matter of law, evaluation under DC 5257 or

5261 precludes separate evaluation under DC 5258 or 5259, and vice versa, is that the meniscal DCs are so broadly drawn that they necessarily encompass recurrent subluxation, lateral instability, and limitation of motion, such that evaluation under DC 5257 or 5261 and DC 5258 or 5259 would necessarily result in duplicate compensation of the same manifestations of knee disability”.  Id. at *7.  The Court found the Secretary’s interpretation is contrary to the plain meaning of Section 4.71a and as that section did not specifically prohibit separate evaluations under DC 5257 or 5261 and a meniscal DC and instead states to evaluate each disability separate except when instructed by the rating schedule.

The Court then focused on whether the symptoms of Mr. Lyles's left knee disabilities already been compensated under DCs 5257 and 5261 such that separate evaluation under DC 5258 or 5259 is not warranted on the facts of this case?  Id. at *10.  The Court then turned to Delisle v. McDonald and a VA General Counsel Opinion from two decades prior.  The Court explained Delisle found

DC 5257 is unambiguous; by its plain language, it provides compensation for veterans suffering from impairments of the knee, other than those enumerated elsewhere in the relevant regulations, that cause the symptoms of recurrent subluxation or lateral instability." In so holding, the Federal Circuit expressly rejected the veteran's argument in that case that DC 5257 should be read to include manifestations of knee disability other than recurrent subluxation or lateral instability, concluding that "DC 5257 is limited to establishing compensation for disabilities causing such specifically enumerated symptoms."

Id. at *11.

The Court then found the Board read into DC 5257 criteria not in it (compensation for pain and swelling) and that such finding must be reversed.  Id. at *12.

The Court then acknowledged the error with regard to DC 5257 could be harmless if DC 5261 properly left knee meniscus disability (including pain and swelling) was compensated fully by DC 5261), but found that was not the case here. 

The Court noted that DeLuca factors could lead to an elevation of the DC 5261 rating, but found that not the case here.  The Court noted the veteran admitted the symptoms he complained of could have resulted in a higher rating pursuant to DC 5261 because of DeLuca but noted the “Board's reasons or bases for denying a higher left knee evaluation under DC 5261 reveal that those manifestations have not yet been compensated in this case.”  Id. at *14-15.  It also stated:

The Board then considered §§ 4.40 and 4.45 and explained that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups" because the April 2010 and August 2015 VA examiners "both commented that they could not say without resort to speculation what such impairment would be." …

Ultimately, the Board concluded that, "[w]ithout clinical medical evidence indicating such additional functional limitation, the Board is unable to find that the [v]eteran's pain is so disabling as to actually or effectively limit . . . extension of the left knee to such an extent as to warrant assignment of higher ratings." This analysis is inadequate in several respects.

Id. at *15.

The analysis was inadequate because the Board focused on pain and did not also consider swelling, popping, locking, and grinding; and, the reliance on the examinations was error due to the court’s recent decision in Sharp related to resorting to mere speculation regarding flare-ups (Sharp focused on interviewing the veteran to assist the physician).  The Court then concluded  

it is clear that the Board has not yet properly assessed whether Mr. Lyles's pain, swelling, popping, locking, and grinding associated with his left knee meniscal disability have been compensated by his current left knee evaluations under DC 5261. Remand of the veteran's left knee meniscal disability claim is therefore warranted to determine whether

separate evaluation of a meniscal disability under either DC 5258 or 5259 is warranted on the facts of this case or whether such evaluation would constitute impermissible pyramiding.

Id. at *17.

This decision by Judge Bartley first explains that DC 5258 and DC 5259 are stand-alone codes that compensate for a knee disability in addition to other knee centered codes.  It also is valuable for tackling the subject of pyramiding and making it a very fact specific determination focused on the actual compensated manifestations of a disability.

Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

Frost: Secondary Service Connection Does Not Require Prior Service Connection of the Underlying Disability

Frost v. Shulkin, Case Number 15-3102, decided November 30, 2017 considers service connection for a secondary condition and whether the underlying condition had to be diagnosed or service connected prior to the occurrence of the secondary condition.

The veteran suffered injuries in a train accident while in service and was ultimately granted service connection for PTSD related to such accident.  However, a couple years after discharge and approximately two decades prior to service connection or even diagnosis of the PTSD, he was involved in an altercation wherein he was shot.

The veteran was applied for and was service connected for his PTSD and then a few years later sought service connection for the gunshot residuals saying they occurred due to his PTSD and thus were caused by his service connected PTSD.  The RO and Board denied the claim.  The Secretary initially argued in his brief that the veteran could not be service connected for an injury that occurred before the underlying condition was either diagnosed or service connected.  At oral argument, the Secretary withdrew this contention and conceded that a veteran may be granted secondary service connection on a causation basis even when the purported primary condition is the subject of diagnosis and award of service connection after incurrence of the purported secondary condition.  Id. at *5.

The Court, in an attempt to clarify the issue for future veterans, examined the Secretary’s initial temporal argument.  It noted “However, the plain language of § 3.310(a)—that a disability ‘proximately due to or the result of a service-connected disease or injury shall be service connected’—does not establish such a temporal requirement. See Petitti, 27 Vet.App. at 422. Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected, or even diagnosed, at the time the secondary condition is incurred.” Id. at *6.

It further stated “Because no language in the text refers to such a temporal requirement, the Court concludes that the plain meaning of § 3.310(a) is clear in this regard and we reject the Secretary's interpretation that would have Mr. Frost's claim barred as a matter of law.”  Id. at *7.

The Court also delayed VA delay in resolving claims and used the delay as a reason why the VA’s interpretation does not make sense.  Id. at *7.

The Court then remanded the claim because the Board failed to provide adequate reasons or bases for its failure to seek a VA examination or medical opinion on the issue.  The Court also noted several pieces of evidence ignored by the Board and took the Board to task for making its own medical determination.  Id. at *9-10.

This is a case with unusual facts that solidifies what should have been already accepted by the VA, that a secondary disability can arise before the underlying condition is diagnosed or service connected.  Also, while having unusual facts, they are facts that appear not infrequently in PTSD situations.

Decision by written by Judge Bartley and joined in by C.J. Davis and Judge Schoelen.