Board Erred in Denying Referral for Extraschedular Consideration, CCK Argues at Court
Summary of the Case
Mr. Spellers served honorably in the United States Army. In January of 2006, VA granted service connection for a low back strain and awarded a 20 percent disability rating. Following several VA examinations, Mr. Spellers was later awarded 10 percent disability ratings for sciatica of the bilateral lower extremities in November of 2009. He appealed this decision only to the extent that he had been denied referral for consideration of an extraschedular rating and was eventually denied by the Board.
Board denies referral for extraschedular consideration
In November of 2016, the Board issued a decision that denied referral for consideration of an extraschedular rating under 38 CFR § 3.321(b)(1) for his sciatica of the bilateral lower extremities. In its decision, the Board considered Mr. Spellers’ use of a walker and concluded that, although not specifically listed in the rating criteria for evaluating neurologic disabilities, assistive devices are provided to alleviate the presence of symptoms and functional limitations caused by an individual’s disability. Furthermore, the Board found that the symptoms that required the use of his assistive device were fully contemplated by the rating criteria and address his functional limitations. The Board concluded that the use of such a device does not create an exceptional disability picture such that extraschedular consideration is warranted. Additionally, the Board considered Mr. Spellers’ use of pain medication and its side effects in connection with an extraschedular analysis. However, the Board found that his reports were not credible due to his failure to report certain side effects during the course of treatment at various times.
CCK presents oral argument at Court
CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied referral for consideration of an extraschedular rating. In April of 2018, CCK delivered an oral argument before the Court in Washington, D.C. CCK argued that the Board failed to explain how the rating criteria in DC 8520 contemplates the use of assistive devices for Mr. Spellers’ bilateral sciatica such that extraschedular referral is not warranted. CCK asserted that the Board misinterpreted 38 CFR § 3.321 in finding that assistive devices address functional limitations that are contemplated by the rating criteria. CCK further argued that while the symptoms that led Mr. Spellers to use an assistive device in the first place may be contemplated by the rating schedule, the effects of such use are not. Additionally, CCK held that the Board failed to provide an adequate statement of reasons and bases for finding that Mr. Spellers was not credible to report the side effects of his pain medication and then denying extraschedular referral for that reason.
Court remands the case back to the Board
CCK argued, and the Court agreed, that the Board failed to provide adequate reasons and bases for its adverse credibility determination. Here, the Board relied on the fact that Mr. Spellers had not reported side effects of his medication. However, the Court affirmed that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by medical evidence. The Court further noted that the Board also relied on a July 2009 patient agreement that Mr. Spellers signed, obligating him to report significant side effects. Importantly, this agreement provided Mr. Spellers with a list of possible side effects. The Court held that it was not clear whether Mr. Spellers understood that he needed to report symptoms not included in the list or why the Board appeared to believe that he had such an understanding. The Court did not find that the Board erred in denying referral for extraschedular consideration based on the use of a walker. Instead, the Court concluded that the symptoms and severity of sciatica that require the use of an assistive device are adequately contemplated by the rating criteria under DC 8520. Nonetheless, the Court held that a remand was warranted for the Board to provide an adequate statement of reasons and bases in assessing the credibility regarding medication side effects and whether those side effects require extraschedular referral.
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Clerk of Court: All rise. Oyez oyez oyez. The United States Court of Appeals for Veteran Claims is now in session. The Honorable Margaret Bartley presiding. All who have business before this court draw near and you shall be heard. God bless the United States and this honorable court. Please be seated.
Judge Bartley: Good morning. My name is Judge Bartley. To my right is Judge Allen, to my left is Judge Meredith.
We are here today to hear the case of Joseph Spellers versus acting Secretary Robert Wilkie. Docket number 16-4053. Would counsel for each party please note your appearance for the record?
Attorney Weiner: Good morning Your Honors. Dana Weiner for Mr. Spellers from Chisholm Chisholm & Kilpatrick. With me at counsel table is Alyse Galoski, also of the firm.
Attorney Ortiz: Good morning Your Honors. Representing the Secretary, Anthony Ortiz, and with me at counsel table Carolyn Washington.
Judge Bartley: Thank you. Miss Weiner, do you wish to reserve any time for rebuttal?
Attorney Weiner: Yes, Your Honor, 10 minutes.
Judge Bartley: Okay that’s noted. You may begin when ready.
Attorney Weiner: Good morning Your Honors and may it please the court. In considering whether extraschedular referral is warranted where a veteran uses an assistive device the Board must answer two questions.
First, is the veteran’s symptomatology and the level of severity of his overall disability picture contemplated by the veterans assigned rating? Second, does the use of the assistive device markedly interfere with employment?
To answer the first question the Board must ask if the specific assistive device is listed in the diagnostic code assigned. Here the Board properly acknowledged it is not. This tells the Board that the effects of the disability picture are not contemplated by the rating in the assigned diagnostic code.
In that case, the Board must look to an authoritative source to discuss whether the veteran is compensated for the severity of the overall disability picture as demonstrated by the use of his assistive device.
Judge Bartley: But the Secretary is arguing that the reference in 38 CFR 4.120 that mentions motor and sensory impairment would actually cover things like the need for assistive devices because it covers your movements.
Attorney Weiner: Yes, Your Honor. Section 4.120 applies but it is inadequate. Notably, the section does not say it’s limited to an assessment of what is in that section, it just says that attention should be given to the listed factors, and in fact, it does instruct the rating authority to refer to the appropriate rating schedule.
Here under diagnostic code 8520, the assistive devices such as Mr. Speller’s walker are not listed and are not contemplated.
Judge Bartley: Let’s look at 8520 and then I want you to tell me what should the RO have been looking at under 8520 when they were evaluating his sciatica?
Attorney Weiner: Yes, Your Honor. We know, in fact, what the Board looked at because he is in receipt of the 10% ratings for his sciatica. The Board was looking at the symptoms of his sciatica and gave him the 10% ratings based on those symptoms.
That does not contemplate the severe and profound effects that the use of a walker and a cane have on his disability picture.
Judge Bartley: But can you just clarify for me are you saying that because he’s mild he’s 10%?
Attorney Weiner: Correct Your Honor.
Judge Bartley: For each extremity, I guess? Are you saying that all they look at is the word ‘mild’ or they look at whatever he has, whatever his symptoms are? I see that 80 and 60 talk about muscular atrophy and flexion of the knee and things like that, should they consider those whenever they are rating under this DC in general?
Attorney Weiner: None of the ratings within this diagnostic code can contemplate the effects of the use of an assistive device. In fact in other parts-
Judge Bartley: But what I’m trying to get you to address is what do they contemplate?
Attorney Weiner: They contemplate the symptoms of the sciatica.
Judge Bartley: Anything that the veteran has?
Attorney Weiner: The symptoms related to the sciatica in terms of the level of paralysis as listed within 8520. But the effects of the use of the assistive device are an entirely separate part of the disability picture that is not contemplated as they’re not listed within 8520.
And in other areas of VA’s, within the rating schedule, VA has specifically contemplated assistive devices where they’ve intended to do so. For example, in diagnostic code 5276, which contemplates flatfoot, the minimum rating available is a zero and the maximum is a 50 where the condition is bilateral and where a veteran’s condition is not improved by orthopedic shoes or orthopedic appliances. The appropriate rating is the maximum 50%.
Similarly, in diagnostic code 5262, which contemplates impairment of the tibia and fibula, the minimum rating is a 10 and the maximum rating is a 40 and there where a brace is required the maximum 40% rating is appropriate. Similarly, in 5255, which contemplates impairment of the femur, VA specifically contemplated the use of a brace and there a 60% rating is appropriate.
These diagnostic codes reveal that not only did VA know how to craft diagnostic codes to specifically contemplate assistive devices where it intended to, but also that it recognizes that the use of assistive devices is indicative of a severe disability picture.
Judge Bartley: Now, if this were a perfect world and we were writing on a blank slate and we were working with the same DC, the same language, do you think it would be– how can I put this? Would you argue that the use of a cane or a brace or some assistive device should be considered under the schedule or would you automatically default to extraschedular?
Attorney Weiner: Your Honor, it is not listed in the diagnostic code so it cannot be part of the schedular rating because rating authority cannot add criteria to the rating schedule that are not there. That would add a level of arbitrariness to an assigned rating and uncertainty.
Judge Bartley: Okay, but don’t we do that in a DeLuca context where we have the preparatory or introductory language to the musculoskeletal conditions talking about pain, loss of function? I forget what other things they talk about. The whole DeLuca grouping of criteria.
They talk about that there. Those things generally speaking are not listed actually in the DC’s and the rule is that because they explain those musculoskeletal DC’s they are considered part of the schedular evaluation.
Attorney Weiner: There is a rule there Your Honor regarding the symptoms but here this is different because there’s an external device that causes severe effects, profound effects, on a veteran’s ability to ambulate to be mobile.
Judge Allen: But the device doesn’t actually cause that, right? What I’m trying to get at is when a DC does not list an assistive device but one is present, isn’t the device really a proxy for something else that is what we’re really considering?
In other words, a cane is not a symptom of a particular malady, it is necessitated by the malady, and so it’s a proxy for perhaps the severity of the condition. Isn’t that what we’re really talking about with assistive devices like this?
Attorney Weiner: Yes, Your Honor. It is not a symptom but the Board has to consider the symptoms and the severity of the overall disability picture and compare that to a veteran’s assigned rating and so the use of that device creates its own effects on a disability picture.
Having to use a walker creates a significant and profound impairment on a veteran’s life and that impairment, the effects of that walker, are what the Board needs to consider in this extraschedular context.
Judge Meredith: Can I jump in there? You are talking about the severity prong of sterum in step one dealing with the diagnostic code here that was mild moderate moderately-severe severe. How do you do an extraschedular severity analysis when you are dealing with a diagnostic code like that?
How do you differentiate extraschedular severity analysis from just an analysis of, “I’m entitled to a higher scheduler rating because it’s more severe than the rating I have”?
Attorney Weiner: Your Honor, well we know that the assistive device is not contemplated because it’s not listed, but also what’s relevant is the veterans assigned rating. We know what symptoms the board granted the 10% ratings on and those symptoms do not include the effect of his walker and his cane.
Those symptoms are listed on page 321 of the record and those symptoms do not contemplate the effects of the assigned rating. So that’s how we are sure that we are in extraschedular. That further supports the fact that these are not contemplated within the assigned diagnostic code.
The veteran is not being compensated for them in his assigned 10% ratings, his mere 10% ratings, and we know that it’s not listed in the diagnostic code. We know we are properly in an extraschedular inquiry.
Judge Bartley: By asking earlier whether if this were a perfect world and we were writing on a clean slate here, which would you choose? I was referring to the fact that you gave up the opportunity or Mr. Sellers gave up the opportunity to challenge the schedular eval.
But would you agree with me that in general, it’s much more difficult to obtain an extraschedular eval than it is, let’s say, to have the brace and the cane considered as part of the scheduler criteria?
Attorney Weiner: It may be difficult Your Honor but it is the appropriate avenue because the schedular avenue is not appropriate since it does not contemplate the assistive devices. Even if Mr. Spellers were at the highest maximum rating, he would not be compensated for the effects that this walker causes on his life because it’s not within the schedular realm. The way to compensate him is through extraschedular.
Judge Allen: To follow up on Judge Bartley’s question, is it your view that it would be inappropriate if what the Board did in a case is say the symptoms that were considered on the portion of the record you gave would lead to a conclusion that this is mild and therefore 10%?
But I also note that the claimant uses a walker and therefore I now conclude that that leads to this being a moderate result. I think that’s what Judge Bartley’s question, in a way, is getting at is that the cane given the type of diagnostic code we have here, or a walker, could as easily be plugged into the determining that something was moderate instead of mild or moderately severe instead of moderate.
Attorney Weiner: Yes, Your Honor. But whether something was moderate or moderately severe would have to be based on the severity of the condition and not based on the effects that the assistive device, like the walker, caused on the severity of the disability picture. That is separate from the symptoms themselves.
Judge Allen: You have now said something a little bit different than what I was saying before and I want to get which one it is. Which is one way that one could be arguing is that the use of an assistive device reflects something else that needs to be considered. That I use a cane which makes my condition worse in some measure, more severe, than somebody who has the same type of condition but doesn’t need to have a cane.
But the way you just framed it you are talking about the cane itself causing something else and so are you talking about both of those things or really just the latter?
Attorney Weiner: Your Honor, having to use an assistive device could be reflective of a more severe disability picture. But for extraschedular, the effects that the assistive device cause are those effects are relevant for the extraschedular inquiry.
Because having to use an assistive device does cause a profound effect on a veteran’s life and those effects are not contemplated in the extraschedular inquiry, I’m sorry, in the schedular inquiry.
Judge Allen: But why not in a diagnostic code like this? Why couldn’t we say that the assistive device is relevant in determining whether or not a disability is mild, moderate, moderately-severe, or severe?
Attorney Weiner: Here it is not listed and in Mr. Spellers case we know that it was not considered because the Board gave an analysis in that regard and we know that the board did not look to the effects of the assistive device in determining the severity of his disability. His sciatica ratings are not based on his use of the walker or the cane.
Judge Bartley: You pointed to the record at 321 earlier?
Attorney Weiner: Correct Your Honor.
Judge Bartley: Can you just point out what sentence you’re talking about as to what he was evaluated on.
Attorney Weiner: Yes, Your Honor, if I may have a moment? At the bottom of page 321, his ratings are therefore based on the foregoing evidence which demonstrates reduced sensation and more recently reduced reflexes without reduced muscle strength. The Board finds that the veteran’s sciatica of the bilateral lower extremities results in no more than mild and complete paralysis of the sciatic nerve bilaterally.
There we know the symptoms that the Board considered and so here his assistive devices were not considered, which is following with fact that they are not listed in the diagnostic code.
Judge Bartley: And do you agree with their finding that he didn’t have reduced muscle strength?
Attorney Weiner: Your Honor that issue is not on appeal so we would not challenge that, but we do challenge the fact that the disability picture is more severe in general but that schedular was not the appropriate avenue to challenge that because regardless of his schedular rating he would not be compensated for the effects of the walker and the cane.
Judge Meredith: I’m trying to determine the significance of the assistive device. Is it relevant that the Veterans Health Administration Handbook refers to mobility aids such as walker cane as treatment?
Attorney Weiner: No, Your Honor. That is not relevant nor is it a bar for the extraschedular avenue. In fact, there is no authority that would bar extraschedular, and in fact, that would actually be contrary to section 3.321b. In the second fund step, the regulation considers frequent hospitalizations. The purpose of frequent hospitalizations is to aid a veteran. When their symptoms are severe, they seek hospitalization to get help.
However, the regulation reflects and acknowledges that the effect of seeking treatment may, in fact, be marked, that may cause a marked interference with their employment. So just because the effect, or the intent is to help them, there may be a marked effect that is negative on their disability picture.
Similarly, a cane or a walker is meant to help a veteran but it may still cause negative effects on their disability picture.
Judge Meredith: Are you suggesting the assistive device is relevant to both step one and step two?
Attorney Weiner: Correct, Your Honor. It may also cause interference with employment.
Judge Bartley: Counsel, do you have any knowledge of what percentage of sufferers of sciatica use mobility assistive devices?
Attorney Weiner: I do not Your Honor. I’m not sure of the specific number, but if the court would like I could look into that.
Judge Bartley: But underlying your whole argument must be some argument that it is exceptional or unusual for a sciatica sufferer to rely on these devices?
Attorney Weiner: Yes, Your Honor. With two 10% ratings in light of VA’s recognition in other diagnostic codes of the severity as well as Social Security’s acknowledgement that use of a walker is totally disabling then it would be exceptional or unusual because it’s not contemplated in the diagnostic code and in fact Mr. Spellers has two 10% ratings but needs a walker and a cane.
But here, the Board did not conduct any of this analysis. The board categorically rejected the possibility that use of a walker could lead to an extraschedular rating on pages 10 to 11 of its decision. This precludes the individualized determination that the effects of a walker could have on a disability picture, which is required for an extraschedular rating.
As noted, Social Security considers the use of a walker to be totally disabling and Social Security specifically recognizes that use of a handheld device could have other effects on a veteran’s disability picture because a handheld device requires of use of one or both upper extremities. That means those extremities-
Judge Bartley: Counselor, I see your time is almost expired.
Attorney Weiner: Yes, Your Honor.
Judge Bartley: Do you have any further questions?
Attorney Weiner: Thank you, Your Honors.
Judge Bartley: You can finish your closing. We’ll add one minute.
Attorney Weiner: Great. Thank you, Your Honors. The Board erred by categorically rejecting the possibility that the veterans use of a walker and cane could lead to referral for an extraschedular rating. Instead, the Board should have evaluated the effects of the use of these devices on the severity of Mr. Spellers overall disability picture.
Because diagnostic code 8520 does not contemplate their use, thus Mr. Spellers requests that this court vacate and remand the Board’s decision so that may provide this analysis in the first instance. Thank you.
Attorney Ortiz: Good morning and may it please the court. The Secretary’s position is that 38 CFR 4.124a DC 8520 and 38 CFR 4.120 contemplate limitation of motor function for all levels of severity.
Further, the use of assistive devices in all cases is only evidence from which a fact-finder or court may draw inferences but they are not symptomology as appellant has conceded in this case. In this case, the only inference that can be drawn from the use of assistive device relates to limitation of motor function which is specifically contemplated in the scheduler rating criteria.
As initial matter as this court has recognized this argument report has wave the level of severity pursuant to the March 2016 JMPR. Therefore the Secretary’s argument is going to focus on symptomatology as applied to the rating criteria.
And to answer the court’s question as posed in the order for motion for clarification to what extent may the Board consider the use of assistive devices, we feel that the Board did so correctly in this case and essentially viewed it as evidence.
We would like to point three portions of the Board’s findings. First, that the use of assistive devices are to alleviate the presence of contemplated symptoms or functional limitations. Second, the symptoms that necessitate the use of assistive devices are fully contemplated by the rating criteria and regulations and third, the regular use of assistive devices does not create an exceptional disability picture. This is on page 11 and 12 of the record. The Board’s analysis appears to be the most logical practical and all-encompassing analysis —
Judge Allen: Can I ask one question about that? It seems that what the Board did and the way you’ve described it, which I think is accurate of what the Board did, really is a categorical position. In other words, one could almost take what the Board said in its decision here with respect to Mr. Spellers and sort of cut and paste it into any decision in which there was a cane. Right. I mean he’s so because if you agree with that then that would be saying that there is no situation in which somebody using a walker could be said to have a more severe set of contemplated symptoms then somebody else.
Attorney Ortiz: I would respectfully disagree your honor because it’s not the use of the cane itself, it’s what’s the cane being used for. For example, the question before in an extraschedular context is what is the underlying symptoms that the cane has been used for if it was being used for – for example, falls. It’s not necessarily indicative of a symptom and that the underlying symptom is a fact-finding ability of the Board is in the position to determine
Judge Allen: But wouldn’t it be — I mean and I agree with you it’s a little slippery in the fact that this diagnostic code talks about levels of severity in a very general way, which is sort of what we’re talking about in in the extraschedular thing. So, it’s a little uncomfortable, but couldn’t you say that somebody would have a set of symptoms, for the symptoms are going to be the same in all of these but Person A has these symptoms but doesn’t require any assistive devices, but they have the symptoms. Person B has the same set of symptoms and uses a cane
But Person C has the same set of symptoms but has to use a walker. It seems like that person who uses a walker is going to have a more severe picture and that if we should be considered and I agree, the walker is just a reflection of something else but isn’t that something the Board should consider in individual cases to see about the severity of the underlying symptoms?
Attorney Ortiz: Well the severity in the underlying symptoms in our view is not a schedular question, or an extraschedular question, it is this schedular questions, especially as applied to this diagnostic code because the use of a walker versus a cane might be indicative of a level of schedular severity — his limitation of motor function is worse as evidenced by the use for walker or cane.
Therefore, we don’t feel that it is an extraschedular question in that situation. It is a schedular question.
Judge Allen: Could you ever have an extraschedular analysis then with respect to 8520?
Attorney Ortiz: For use of assistive device?
Judge Allen: For Anything
Attorney Ortiz: You may your honor
Judge Allen: How?
Attorney Ortiz: There are certain — 8520 cannot be seen in a vacuum. If you look at 38 CFR 4.120, it points to specific symptomatology and specific considerations that a rating adjudicator must pay attention to when applying the schedular rating. So if things fall outside those considerations then they would necessitate an extraschedular consideration, and in this case 4.120 points to impairments of motor function, impairments of sensory function, impairments of mental function – they give specific examples.
For peripheral nerve injuries, they direct the adjudicator to pay attention to the character inside an injury their relative impairment of motor function, trophic changes, sensory disturbances. So, this is not a generalized rating. This is a generalized rating in 8520 what specific areas that adjudicator must pay attention to.
Judge Bartley: I think that what the judge was referring to was it that those specific areas are so broad that it’s hard. It’s kind of hard at least for me to conceive of any disability picture that would fall outside of the language of for 4.120. It includes as you said everything having to do with motor function, everything having to do with sensory function, and if you’re talking about a sciatic nerve problem, tell me I’m looking what else would there be, what else could there be, that you could rate extraschedular then?
If indeed that is so broad that it’s going to cover everything dealing with your nerves and your motor function.
Attorney Ortiz: Your Honor, I can’t really conceive of a hypothetical that’s outside the schedular, that places an extraschedular realm, but this might be just the policy determination that these symptomatologies signify the average impairment for this disability. It is within the VA discretion to make it as broad or as specific as possible.
Judge Allen: And it may — don’t take from my questions that this is a bad thing necessarily for your position. It really is it a difficult thing to have the rating criteria be mild, moderate, and severe, or moderately severe and severe, and try to figure out then how one could have an extraschedular analysis with that and maybe the answer is you can’t. That’s one possibility. Or another question would be it cane could be considered an either one and it’s not error to do it. And so how should we how should we think about that?
Attorney Ortiz: I believe we should think about in the lens of 4.120. 4.120 is more specific than diagnostic coding 520 and it is something that you became must pay attention to me. So it kind of lists the symptomatology and it’s describes essentially the disability picture of somebody with bilateral sciatica.
Judge Bartley: If we accept your argument in that regard is Mr. Spellers’ case going to be tantamount to a DeLuca for all of neurological conditions. That is, whenever we do musculoskeletal conditions, we look at the preparatory language to the musculoskeletal DC is about pain and loss of function etc. and raters incorporate those elements into any musculoskeletal evaluation.
And so here it seems like you’re arguing that that’s what we should do for all neurologic conditions that are covered under the neurological conditions DC, as we have this introductory language that explains how you apply the neurologic condition DC’s. And that every time a rater does a neurologic evaluation. They have to refer back to 4.120 and maybe 4.123 and 4.124 and they incorporate elements or consideration of those elements into the evaluation of a neurologic condition the schedular evaluation.
Attorney Ortiz: Yes your honor, I would agree with that. I would say this is already done. If you reference the April 2014 peripheral nerve examination, for example, just trophic changes are listed in the DBQ. So, it is apparent that they’re taking 4.120 into consideration already when providing the ratings in this case. So, 4.120 is contemplated at least as evidence and I believe it’s page 733 of the record.
Judge Meredith: Could we get your respond to something the appellant said, that the assistive device should be considered – is it your position that it should not be considered at all in Step One and would it be considered in Step 2?
Attorney Ortiz: In this case, I don’t believe it would because it is essentially a function of contemplated symptoms right now. So I don’t think it is a relevant factor, but we’re not saying that it should not be considered in Step One. We’re just saying that it is evidence that may be relevant, so if the inferences relate to symptoms that are not contemplated by the rating criteria, then certainly it should be considered by a fact finder.
Judge Meredith: But then it’s essentially, you’re not taking the device itself into account. It’s the underlying symptoms that necessitated the device.
Attorney Ortiz: Yes, your honor
Judge Meredith: So, the device itself doesn’t come into play in your analysis.
Attorney Ortiz: Yes, your honor and the device itself in our position should not come to analysis because this is not adding symptomatology, it is not worsening a disability picture, it is actually improving a disability picture. In this case, appellant’s limitation of motor function was limited and because of the use of the assistive devices it is now better. To say that he has now a worse disability picture is simply not supported
Judge Allen: But I’m just trying to figure out giving you arguing about 4.120, but what symptom could a cane or walker reflect that wouldn’t be a motor system. Right? I mean in other words, you know, this is broad — a motor-sensory or mental and I’m trying to think of a hypothetical that would say I use a cane which reflects a symptom that isn’t captured by that this goes to Judge Meredith’s question about Step 1.
Attorney Ortiz: I’m sorry. Can you —
Judge Allen: Just Meredith was asking you about where a cane to be considered say for example, Step 1 or Step 2 of Thun. Then you gave an answer that really, it’s not the cane, the cane is reflective of something else, a symptom, right? I’m trying to think of a symptom that a cane could be reflective of that doesn’t fit within 4.120 because you keep going back to that. I can’t think of —
Attorney Ortiz: I can’t think of one either, which kind of adds credence to our argument that it is contemplated under 4.120. A cane by it’s very nature is to aid limitations in motor function.
Judge Allen: That’s my point and you might be right. Okay, your point might be right. It doesn’t say your point is right or wrong, but it does say if that’s the case then the cane never gets to step 1 or step 2 of Thun because it is contemplated. It can’t reflect anything that isn’t already reflected in 4.120 on that logic.
Attorney Ortiz: Well, I would I would agree that it can never get in and of itself unless it indicates some other symptom that is not contemplated by the rating criteria to extraschedular. But in our view, it is a function of schedular rating. It can very well show that the severity of his limitation of motor function is more severe than he is rated for but that’s a matter of schedular rating and not extraschedular rating because as extraschedular rating is to compensate the veteran for things that don’t ordinarily happen or are not contemplated. If it’s contemplated then it should go down the schedular route.
Judge Meredith: So, your position is that as long as the symptoms are contemplated by schedule no matter the severity, you could never get into the extraschedular realm here. Are you weaning severity out of Step One for this diagnostic code?
Attorney Ortiz: No, your honor but this is a comparison of severity of the symptoms and the severity in this case no longer an issue as appellant has, I believe has conceded, then the next step is to determine what the symptoms that the appellant has that are present. So symptoms as it says in Yancy will be the focus.
Judge Allen: So, it’s not to beat a dead horse here, but I want to just make sure where the road we’re going down ends from your point to follow up on Judge Meredith’s point. So the cane, I’m going to use cane as an example here, the cane can’t reflect a symptom itself that isn’t contemplated because of 4.120 – that’s Step One. Step Two and I’m not talking about Thun steps. Step 2 in this reasoning is and the severity prong of extraschedular never comes into play not because of 4.120 but because of the way the rating schedule is designed: mild, moderate, moderately severe, or severe. So, in other words the symptoms are all going to be captured by 4.120 and the severity is captured by the way in which the rating schedule, the diagnostic code itself, is set up. Therefore, there’s nothing, there’s no work to be done, in extraschedular because of the combination of those two. Would that be a fair characterization of the Secretary’s argument?
Attorney Ortiz: I believe that would be a fair characterization, your honor.
Your honor, I would like to just take a few moments to address appellant’s arguments, especially under the 30b motion of notice. The reliance on Social Security rights simply has no bearing on this case. VA is not bound with them. They certainly did not establish that the use of assistive devices or their underlying symptomatology are contemplated by 38 CFR 4.124a or 4.120. Moreover, the reliance on diagnostic codes which specifically list of this devices has its problems.
Again, it’sour position is that the use of assistive devices only indicates potentially underlined symptom and the VA specific listing in a diagnostic code only shows a unit of measurement for a particular level of severity. In a vast majority of cases, diagnostic codes don’t really list devices, but they are contemplated in our view by the very nature of the disabilities itself. Unless you have any further question your honor?
Judge Bartley: No.
Attorney Ortiz: Thank you
Attorney Weiner: Thank you, your honors. First, Mr. Spellers would like to address that he has not waived the issue of severity, the issue of entitlement to a higher schedular rating is not an issue. But severity is at issue for an extraschedular rating, severity is part of the Thun inquiry, the first —
Judge Allen: Could you address the combined argument that I articulated with Mr. Ortiz right at the end of his argument, which is the symptomatology prong or part of Thun is contemplated through 4.120 and the severity analysis is contemplated, if you will, by the nature of the DC: mild, moderate, moderately severe, and severe, and you put those two things together to work for extraschedular, which would do it all in this context.
Attorney Weiner: Your honor foreclosing the extraschedular inquiry from this entire diagnostic code would preclude any individualized assessment, which is the purpose of extraschedular. As the Secretary noted, the diagnostic code is written in averages to contemplate the average in impairment. And so, to preclude the ability of an analysis to determine whether an assistive device does in fact indicate that there is an exceptional or unusual disability picture would be foreclosing that entire avenue and thus prevent any sort of individualized analysis.
Judge Bartley: Well, I have no problem with what you just said actually, but we did question counsel for the Secretary and he was unable to come up with anything given the broad language in 4.120 & 123 & 124. Putting aside your argument here that a cane or a mobility device would fall into that category. Can you think of another situation that wouldn’t be contemplated by the use of the word motor and sensory function in 4.120?
Attorney Weiner: Your honor, is your question another symptom that would not be contemplated —
Judge Bartley: Something that would qualify for an extraschedular analysis for sciatica. Hopefully.
Attorney Weiner: Sure. Your honor, something that comes to mind is sleep disturbance. If the veteran’s sciatica, you know prevents him from sleeping through the night because of the manner in which you have to sleep or the severity of the pain or some other manifestation of the sciatica that does not have to do with his specific motor impairment and I believe that by reading the language of section 4.120, which says disability is to be ordinarily rated in proportion to the impairment of motor, again talking in averages, and then it refers the rating authority to the appropriate schedule. Noting that attention should be given to the site and character of the injury. So again, there’s no limiting language and in fact that language refers the rating authority to the appropriate diagnostic code to the rating schedule in order to determine what an appropriate rating should be. Here the Board did that, determined the appropriate rating, which did not contemplate the effects of the assistive device and thus are appropriately in the extraschedular realm.
Second, the Secretary agrees that assistive devices may be relevant for an extraschedular analysis. However, he asserts that they improve a disability picture and do not add anything negative. However, there is no authority that using an assistive device does not add anything negative to an overall disability and picture and in fact looking to Social Security as well as VA’s regulations, which you know that assistive devices are part of a severe disability picture and Social Security, which notes that because the use of a walker is listed as its own disability listing it is in fact, totally disabling and notes that the other effects that are required when using a handheld device such as the use of one or both upper extremities that in fact it does cause severe and profound it backs not to mention the extra limits on mobility, such as the interference with going upstairs or moving or squeezing through spaces just by the very nature of having this device around your body. And in fact, in Johnston this Court remanded where the Board did not consider the effects of assistive device. So there the court did in fact recognize that it is the effects of the assistive device that are relative to an extraschedular inquiry
And last, the Secretary argues that the underlying symptoms are relevant in terms of the use of a cane or walker and that if those symptoms are contemplated than the use of the assistive devices cannot lead to an extraschedular rating, but in fact, that’s what makes it appropriate to be an extraschedular because if the veteran’s schedular rating contemplates his symptoms, but he still uses the walker which is not contemplated, that’s what allows us to know that we are appropriately in the realm of extraschedular.
If the court has no other questions? Thank you, your honors
Judge Bartley: Thank you. The case will be submitted for decision, the court is now adjourned and we will come down and greet counsel.
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