Rivera-Colon: Extraschedular Rating for Gastritis

Rivera-Colon v. McDonough, Case Number 19-6129, decided April 11, 2022 discusses the need for referral for an extraschedular rating for gastritis.

The veteran was rated at 10% for gastritis but asserted the Board should have considered whether his gastritis should be referred for extraschedular considerations under 38 CFR 3.321(b). 

The veteran argued “the Board's reasons or bases are inadequate because they do not address whether referral for extraschedular consideration is warranted.  Appellant's Br. at 6. He states that the record reflects "exceptional symptoms, which did not fit any diagnostic criteria," such as pain unrelieved by standard ulcer therapy, emergency room treatment for diarrhea, and symptoms of such severity that he can no longer work.”  The Secretary argued the functional impacts of the gastritis  did not raise the issue of extraschedular consideration because the symptoms claimed as exceptional are listed under the DBQ evaluation. 

“Under DC 7307, chronic gastritis "with small nodular lesions, and symptoms," warrants a 10% evaluation. 38 C.F.R. § 4.114 (2021). Chronic gastritis "with multiple small eroded or ulcerated areas, and symptoms," warrants a 30% evaluation. Id. Chronic gastritis "with severe hemorrhages, or large ulcerated or eroded areas" warrants a 60% evaluation, which is the maximum schedular evaluation available under DC 7307. Id. The introduction to § 4.114 specifies that [r]atings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  Id.

On September 2, 2021, the Court ordered the parties to submit supplemental memoranda of law to address, among other things, whether the phrase "and symptoms," as used in the rating criteria for 10% and 30% evaluations under DC 7307, was so all-encompassing as to foreclose any consideration of an extraschedular evaluation and, if not, how entitlement to an extraschedular evaluation should be determined.”

In the supplemental memorandum, the veteran argued a recent revision to Section 3.321 undermined Thun and later case law.  The veteran argued a change had removed the role of the district station as providing a threshold inquiry regarding extraschedular consideration.  “In other words, he asserts that neither the RO nor the Board have any role to play in determining whether extraschedular evaluations are warranted because the Secretary has "unambiguously and exclusively delegated the full responsibility to the Director." Id. at 9. Therefore, he argues, Thun and its progeny are no longer controlling precedent.”

The veteran also argued the term “and symptoms” found in the diagnostic code was undefined. 

The Court declined to consider the Thun argument as raised to late (during supplemental briefing).    However, the Court did find the “and symptoms” is a critical undefined term.  The Secretary argued “DC 7307 "necessarily contemplates the usual and typical symptoms and effects commonly associated with" gastritis because "each diagnostic code reasonably contains the full range of symptoms usually associated with or caused by the disability." Secretary's Supp. MOL at 5 (citing Long, 33 Vet.App. at 173). By  implication, then, symptoms that are unusual or atypical for gastritis may warrant referral for consideration of an extraschedular evaluation. The problem in Mr. Rivera-Colon's case is that the Court has no way of knowing what those usual or typical symptoms of gastritis are because VA has not defined them.” 

 “Ultimately, although the Secretary confirms that extraschedular evaluations may be available for conditions evaluated under DC 7307, and that the term "symptoms" as used in the 10% and 30% schedular evaluations refers to the usual or typical symptoms associated with gastritis, VA has not defined what those usual and typical symptoms of gastritis are or whether 10% and 30% evaluations contemplate different symptoms. And the Board did not explain in its reasons or bases how it reached its implicit finding that Mr. Rivera-Colon's gastritis symptoms were not exceptional. Consequently, judicial review is frustrated, and the Court is unable to determine whether, as Mr. Rivera-Colon asserts, the record reasonably raised the question of entitlement to referral for extraschedular consideration.”

The Court went further and provided additional guidance to the Board saying: “Because the term "symptoms" was not defined for the purpose of DC 7307, the DC assigned for Mr. Rivera-Colon's gastritis, he did not receive notice as to what was encompassed by—or excluded from—the 10% schedular evaluation assigned.  If, on remand, the Board determines that certain symptoms (or other diagnoses, on a secondary basis) are attributable to Mr. Rivera-Colon's service-connected gastritis, and those symptoms or diagnoses would entitle him to a higher schedular evaluation under DC 7307 or another DC, it must consider whether a higher schedular evaluation is warranted.”

Decision by Chief Judge Bartley and joined by Judges Pietsch and Laurer.

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