Citation Nr: 1330694 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 00-20 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an extraschedular evaluation for post operative residuals of a total right knee replacement from December 1, 2001, above and beyond that granted by the Director of the Compensation and Pension Service. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2002, June 2004, and August 2004, the Board remanded this case for further development. In August 2007, the Board denied entitlement to an increased schedular evaluation for post operative residuals of a total right knee replacement. The Veteran appealed. In March 2009, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand. Pursuant to the joint motion, the Board in July 2009 remanded the case for additional development. In October 2010, the Board, in pertinent part, denied entitlement to an increased schedular rating for post operative residuals of a total right knee replacement from December 1, 2001 to June 25, 2008, and remanded the issue of entitlement to an increased rating from June 26, 2008 for additional development. The Veteran again appealed. In August 2011, the Court granted a joint motion for remand. The joint motion found that the October 2010 Board decision failed to address the question of entitlement to an extraschedular evaluation for post operative residuals of a total right knee replacement pursuant to 38 C.F.R. § 3.321(b) for the period from December 1, 2001 to June 25, 2008. The joint motion noted that the appellant specifically abandoned any appeal to the question of entitlement to an increased schedular rating for this term. Pursuant to the joint motion, the Board remanded the issue of entitlement to an extraschedular rating for further development in April 2012. In June 2013, the Board denied entitlement to an increased schedular evaluation for post operative residuals of a total right knee replacement, and remanded the question of entitlement to an extraschedular evaluation. In August 2013, the Director of VA's Compensation Service found that the Veteran's right knee disorder presented evidence of a marked interference with employment and assigned an additional 10 percent extraschedular rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5055, effective December 1, 2001. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. FINDINGS OF FACT 1. The Veteran's case was referred to the Director of Compensation and Pension Service for extraschedular consideration and, in August 2013, the Director determined that an extraschedular rating was warranted for the Veteran's post operative residuals of a total right knee replacement. 2. Only the Under Secretary for Benefits and the Director of the Compensation Service have the authority to award an extraschedular rating. CONCLUSION OF LAW The Board has no authority to assign an extraschedular rating in excess of that awarded by the Director of the Compensation and Pension Service in August 2013. Thun v. Shinseki, 572 F.3d 1366, 1370 (Fed. Cir. 2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As will be discussed below, this claim is being denied as a matter of law. Hence, notice under the VCAA is not required because the Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Legal Criteria The law provides that ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extraschedular provisions of 38 C.F.R. § 3.321(b). The Court held that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Id. at 115. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. This task is to be performed by the RO or the Board. Id. In this case, that task was accomplished by the Board in June 2013. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Thun, 22 Vet. App. at 116. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. This task is also to be performed by the RO or the Board, and that task was also completed in June 2013. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension service for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). This final task was completed in June 2013. As noted above, after the claims file was forwarded to the Director of the Compensation and Pension Service, that office assigned an additional extraschedular 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5055 effective December 1, 2001. Because the case has already been referred to the Director of the Compensation Service, there is effectively no longer any remaining allegation of error of fact or law concerning this aspect of the appeal. That is, the Board has no authority to award a higher rating on an extraschedular basis or compel the Director of the Compensation Service to assign a extraschedular rating higher than the 10 percent awarded in August 2013. To explain further, the Federal Circuit addressed the matter when it reviewed and affirmed the Court's Thun decision. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Significantly, the Federal Circuit's Thun decision was also subsequent to the Court's Anderson decision. The Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the Director [of the Compensation and Pension Service] have the authority to award an extraschedular rating." Thun, 572 F.3d at 1370 (emphasis added). While the Federal Circuit also found that the RO and the Board play some role in evaluating a claim for an extraschedular rating, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extraschedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extraschedular rating 'to accord justice.'" Id. (emphasis added). Given the Federal Circuit's interpretation of the extraschedular provisions of 38 C.F.R. § 3.321(b), only the Director of the Compensation and Pension Service or the Under Secretary for Benefits have the authority to award an extraschedular rating. The Board possesses no such authority be it in the first instance or any instance. The Court, in Anderson, indicated that the Board may have purview over the third Thun element. See Anderson, 22 Vet. App. at 428-29. However, as noted previously, Anderson was decided before the Federal Circuit affirmed the Court's Thun case and interpreted its meaning as well as that of 38 C.F.R. § 3.321(b) . The concurring opinion in Anderson, although addressing a different aspect of the extraschedular process, provided some insight into why the Federal Circuit's holding is the appropriate result. The concurrence noted that the delegation of authority for the Director of the Compensation and Pension Service to assign an extraschedular rating is appropriate, given that the Director has been delegated the authority to draft the rating schedule, based on "as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations." Anderson, 22 Vet. App. at 431 (Schoelen, J., concurring) (citing 38 U.S.C. §§ 501(a), 1155; 38 C.F.R. §§ 2.6(b)(1), 3.100). "This makes the Director of [the Compensation and Pension Service] uniquely suited to determining what extraschedular rating level is warranted. On the other hand, the RO and the Board have expertise in applying facts of each respective case to the rating schedule." Id. (citing Moore v. Nicholson, 21 Vet. App. 211, 218 (2007)). The role of the Board is to apply the laws and regulations to the facts of the case. See 38 U.S.C.A. § 7104 (West 2002). The provisions of 38 C.F.R. § 3.321(b) allow that an extraschedular rating will be assigned so as to "accord justice." Justice is "the principle or ideal of moral rightness." Webster's II New Riverside University Dictionary 659, 660 (1988). The Board, however, does not address such matters except in the limited application of the first two steps as set forth in Thun. The authority to decide the equitable question set forth in the third step in Thun-the assignment of ratings necessary to accord justice-is entrusted to the Director and the Under Secretary, not the Board. Cf. Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (only the Secretary, and not the Court or the Board, has the authority to award equitable relief under 38 U.S.C.A. § 503(a) ). In sum, with respect to the assignment of an extraschedular rating to "accord justice" (i.e. equity), only the Under Secretary for Benefits and the Director of the Compensation and Pension Service have been delegated the authority to award the extraschedular rating. Thun, 572 F.3d at 1370. In the Veteran's case, because the Board does not possess the authority to accord justice (or have any basis for arriving at an equitable determination) by awarding an extraschedular rating, entitlement to an extraschedular rating above that already granted by the Director for postoperative residuals of a total right knee replacement radiculopathy is denied. ORDER Entitlement to an extraschedular rating for post operative residuals of a total right knee replacement beyond that granted by the Director of the Compensation and Pension Service is denied. _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs