Petermann: Diabetes, Extraschedular Consideration and Successive Ratings

Petermann v. Wilkie, Opinion Number 2016-1093 is a Veterans Court decision dated August 10, 2018 which deals with how extraschedular consideration interact with a successive rating such as DC 7913.

The veteran was service connected for diabetes and granted a 40% rating.  He argued, however, that the severity of his diabetes was not adequately contemplated by his existing rating and referral for extraschedular considations is warranted to compensate for those uncontemplated symptoms.  Id. at  *3.

The Secretary argued

                        

the relevant question when determining whether the first prong of the Thun v. Peake,

22 Vet.App. 111 (2008) analysis is met is whether the manifestations of a disability are

contemplated by the criteria of the entire DC at issue, not whether the manifestations of a disability are contemplated by the criteria of the particular rating assigned. Id. at 8-11. Because § 3.321(b)(1), title 38, Code of Federal Regulations, allows for an extraschedular evaluation "where the schedular evaluations are found to be inadequate," the Government contends, the adequacy of an assigned rating is measured against "multiple available evaluations rather than the singular evaluation that is assigned." Secretary's Motion for Reconsideration at 3 (emphasis in original). It is the Secretary's position that allowing the appellant extraschedular referral for diabetes based on symptoms contemplated at higher ratings of DC 7913 would "eviscerate" the Court's holding in Camacho regarding the successive nature of the criteria under this DC and the requirements to receive a schedular rating under this DC.

Id. at *3-4.

            The Court noted DC 7913 rating criteria ‘are successive and therefore, to establish a given disability rating, all the rating criteria for that and for lower ratings must be met.”  Id. at *4.  It then disagreed with the Secretary’s argument that the appropriate comparison in an extraschedular analysis is between the symptoms of a veteran and the criteria of the entire DC at issue.  Id. at *6.  It explained

Such an interpretation solely contemplates mere symptomatology and eliminates in extraschedular referral analysis the requirement to compare the type of symptoms the appellant suffers from with the criteria of his assigned rating….  The Secretary's assertion simply conflates the concepts of schedular and extraschedular disability ratings: it is not logically possible for these distinct rating avenues to overlap to the extent the Secretary suggests. Nothing in today's holding changes how the schedular analysis operates.

For example, the rating schedule retains its character, including the inapplicability of 38 C.F.R. § 4.7.  Thus, because of the successive nature of the rating schedule, there will be some symptoms (as our hypothetical showed) that will not be addressed in a schedular rating. And that remains the case. But that conclusion does not say anything about the role an extraschedular analysis might play in addressing those symptoms.  The Secretary acknowledges § 3.321's "gap filling function" but argues that "it is not true that Appellant has shown there is any gap to be filled here." Id.  But the gap to be filled comes from the unique nature of successive ratings and precisely because the successive schedular rating retains its attributes. Thus, applying King's logic here allows § 3.321(b)(1) to fill that gap. Any failure to consider symptoms not contemplated by a claimant's disability rating is contrary to law and potentially deprives a veteran of compensation.

Id. at *6.

The Court turned its holding to the case at hand and determined

Because the rating criteria for diabetes are successive, see Camacho, 21 Vet.App. 360, the appellant's 40% disability rating solely contemplates his insulin use, his restricted diet, and the regulation of his activities. See 38 C.F.R. § 4.119, DC 7913. The appellant requires multiple daily injections of insulin as well as an insulin pump, diabetic management that is contemplated by a 100% disability rating. R. at 234, see C.F.R. § 4.119, DC 7913.  The appellant has testified that he has had ketoacidosis and hypoglycemic episodes as well as diabetic complications…. These episodes are potentially relevant to a 60% disability rating. See id. The Board failed to explain how a 40% schedular rating adequately compensates the appellant's service-connected disability.
***

Remand is required for the Board to provide an adequate statement of reasons or bases for its extraschedular consideration.

Id. at *6-7.

Judge Toth filed a dissent in which he argued

VA rules generally provide that, even if a disability does not manifest all the criteria in a specific rating within a given DC, the higher rating will be assigned if a veteran's disability picture more nearly approximates the criteria in that rating than in the lower rating, because real-life disabilities may not be exactly as DCs describe them. See Tatum v. Shinseki, 23 Vet.App. 152, 155-57 (2009). These rules, however, don't apply in the case of a cumulative DC such as 7913.  See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). That's because the "enumerated elements" of a rating in DC 7913 "are part of a structured scheme of specific, successive, cumulative criteria for establishing a disability rating" where a higher rating includes the same criteria as a lower rating plus distinct new criteria. Id. In other words, DC 7913 is crafted holistically: Each rating must be read with an eye towards the ratings above and below it. So, even if the 40% rating doesn't explicitly list a criterion—for example, episodes of ketoacidosis requiring visits to a diabetic care provider—it can't be said that the rating fails to contemplate that criterion.

Id. at *8.

It seems likely the VA will appeal this case to the Federal Circuit.  However, it is helpful at present for establishing that even in successive diagnostic code situations, referral for extraschedular consideration might be required.

Decision by Judge Greenberg and jointed by Judge Allen.  Dissent by Judge Toth.

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