Brambley v. Principi

17 Vet. App. 20, 2003 U.S. Vet. App. LEXIS 109, 2003 WL 549231
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 27, 2003
Docket01-1156
StatusPublished
Cited by21 cases

This text of 17 Vet. App. 20 (Brambley v. Principi) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brambley v. Principi, 17 Vet. App. 20, 2003 U.S. Vet. App. LEXIS 109, 2003 WL 549231 (Cal. 2003).

Opinions

IVERS, Judge, filed the opinion of the Court. STEINBERG, Judge, filed a concurring opinion.

IVERS, Judge:

Veteran Seth Brambley appeals a May 30, 2001, decision of the Board of Veterans’ Appeals (Board or BVA) that (1) denied an increased disability rating for low back strain with degenerative arthritis of the lumbar spine with limitation of motion, currently rated as 40% disabling; (2) denied an increased rating for degenerative arthritis of the thoracic spine with pain on [22]*22motion, currently rated as 10% disabling; and (3) remanded a claim for a rating of total disability based on individual unem-ployability (TDIU). Record (R.) at 1-23. The Court will not address the merits of the remanded TDIU-rating claim because no final Board decision has been entered with respect to that claim, and it is not, therefore, properly before the Court. See 38 U.S.C. § 7252(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed.Cir.2000); see also 38 C.F.R. § 20.1100(b) (2002). For the reasons discussed below, the Court will vacate the Board decision and remand the matter for further proceedings consistent with this opinion.

I. FACTS

The appellant served on active duty with the U.S. Marine Corps from June 1985 to March 1987. R. at 102. In September 1997, he filed a claim seeking increased disability ratings for his service-connected back conditions and a claim seeking a TDIU rating. R. at 231-35. At that time, the veteran had a 20% disability rating for chronic low back strain with degenerative arthritis of the lumbosacral spine with limitation of motion, and a 10% disability rating for degenerative arthritis of the thoracic spine with pain on motion. R. at 145-47, 171-73. A VA regional office (RO) conducted a spine examination in August 1999. R. at 316-20. X-rays showed, inter alia, mild degenerative arthritic changes in the thoracic area, deformity of the antero-superior corner of the L4 vertebra, and degenerative changes in the lumbar region. R. at 319. A VA compensation and pension (C & P) social work examination was conducted in September 1999 to review the appellant’s work history and assess his employability. R. at 310-14. A November 1999 RO decision continued the 10% rating for his arthritis of the thoracic spine and awarded a rating increase to 40% for degenerative arthritis of the lumbar spine with limitation of motion. R. at 322-29. The same RO decision denied the TDIU-rating claim on the ground that the appellant’s condition did not meet the regulatory threshold described in 38 C.F.R. § 4.16(a) (2002) for that rating. R. at 327.

In the decision here on appeal, the Board reviewed the history of the appellant’s claims concerning his back disabilities. R. at 3-9. The Board summarized the relevant regulatory diagnostic codes and analyzed the appellant’s service-connected disabilities in light of the applicable codes. R. at 9-12. The Board concluded that the appellant was receiving the maximum schedular ratings allowed for his conditions. R. at 15-17. The Board also considered the applicability of an extras-chedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (2002). The Board concluded that the appellant had not demonstrated that either of his back conditions, in and of itself, was sufficiently extraordinary or unusual to warrant referral to the VA C & P Service Director for consideration of an extraschedular rating. R. at 15-17.

With respect to the appellant’s TDIU-rating claim, the Board concluded that additional evidentiary development was necessary. R. at 18. In a seven-point remand order, the RO was directed to clarify inconsistencies in the appellant’s employment history, particularly the effect of his service-connected disabilities on his em-ployability. R. at 19-22. The RO was directed to provide for an orthopedic examination, if necessary, to determine whether the appellant was capable of performing sedentary or nonstrenuous employment. R. at 21.

II. ANALYSIS

The Board’s findings as to the degree of impairment resulting from a disability are factual and are reviewed by the [23]*23Court under the “clearly erroneous” standard under 38 U.S.C. § 7261(a)(4). See Francisco v. Brown, 7 Vet.App. 55, 57 (1994); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). The Board must base its decision on “all evidence and material of record” and must provide a “written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.” 38 U.S.C. § 7104(a), (d)(1); see Gilbert, 1 Vet.App. at 56-57. Pursuant to these statutory requirements, the Board must “account for the evidence which it finds to be persuasive or unpersuasive,” and provide reasons or bases for rejecting evidence submitted by or on behalf of the claimant. Gilbert, 1 Vet.App. at 57. The Board’s statement must be adequate to inform the appellant of the basis for the discussion and to permit effective judicial review. See Fleshman v. Brown, 9 Vet.App. 548, 552-53 (1996); Allday v. Brawn, 7 Vet.App. 517, 527 (1995).

The appellant contends, inter alia, that the Board failed to provide an adequate statement of reasons or bases as to the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Appellant’s Brief (Br.) at 5. The Secretary counters that the Board reviewed the entire record and found that the evidence did not show that either the appellant’s low back disability or thoracic spine arthritis presented a disability picture unusual enough to render the application of the rating schedule impractical. Secretary’s Br. at 15.

Section 3.321(b)(1), which provides an avenue for additional review of the exceptional ease, states:

[WJhere the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular 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)(1) (2002). Extrasche-dular rating consideration is a component of the appellant’s claim for an increased rating. See Bagwell v. Brown, 9 Vet.App.

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Cite This Page — Counsel Stack

Bluebook (online)
17 Vet. App. 20, 2003 U.S. Vet. App. LEXIS 109, 2003 WL 549231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brambley-v-principi-cavc-2003.