Long v. McDonough

38 F.4th 1063

• Court: Court of Appeals for the Federal Circuit
• Decided: June 29, 2022
• Docket: 21-1669
• Status: Published

Opinion

Case: 21-1669 Document: 44 Page: 1 Filed: 06/29/2022

United States Court of Appeals for the Federal Circuit ______________________

WALTER G. LONG, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2021-1669 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 16-1537, Senior Judge Mary J. Schoelen, Senior Judge Robert N. Davis, Chief Judge Mar- garet C. Bartley, Judge Amanda L. Meredith, Judge Coral Wong Pietsch, Judge Joseph L. Falvey, Jr., Judge Joseph L. Toth, Judge Michael P. Allen, Judge William S. Green- berg. ______________________

Decided: June 29, 2022 ______________________

APRIL DONAHOWER, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also repre- sented by BARBARA J. COOK, ZACHARY STOLZ; MEGAN BRITTNEY HALL, Disabled American Veterans, Cold Spring, KY.

MEEN GEU OH, Commercial Litigation Branch, Civil Case: 21-1669 Document: 44 Page: 2 Filed: 06/29/2022

Division, United States Department of Justice, Washing- ton, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before MOORE, Chief Judge, LOURIE and BRYSON, Circuit Judges. Opinion for the court filed by Chief Judge MOORE. Dissenting opinion filed by Circuit Judge BRYSON. MOORE, Chief Judge. Walter Long appeals a decision of the Court of Appeals for Veterans Claims affirming the Board of Veterans’ Ap- peals denial of an extra-schedular rating for Mr. Long’s bi- lateral hearing loss. Long v. Wilkie, 33 Vet. App. 167 (2020) (en banc). For the following reasons, we vacate and re- mand. BACKGROUND Mr. Long served in the Air Force from 1969 to 1976 and spent most of that time as an air traffic control radar re- pairman, working without ear protection near active run- ways. In 2009, Mr. Long filed a disability compensation claim for hearing loss and tinnitus. The Department of Veterans Affairs (VA) found his hearing loss and tinnitus were service-connected and assigned Mr. Long a 0% disa- bility rating for his hearing loss and a 10% disability rating for his tinnitus according to the schedular rating criteria set forth in 38 C.F.R. § 4.85. Mr. Long appealed the VA’s decision to the Board, ar- guing only that the VA should have referred the matter for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). According to Mr. Long, the schedular rating Case: 21-1669 Document: 44 Page: 3 Filed: 06/29/2022

LONG v. MCDONOUGH 3

criteria did not capture the functional effects of his hearing loss, including ear pain caused by his hearing aids. The Board rejected Mr. Long’s argument. The Veterans Court affirmed because it found no direct causal link between Mr. Long’s ear pain and his service- connected hearing loss. Mr. Long appeals. We have juris- diction under 38 U.S.C. § 7292(a). DISCUSSION I Disability benefits are generally based on a schedule of ratings for specific injuries and diseases. 38 U.S.C. § 1155. However, extra-schedular consideration is available to a veteran when (1) the schedular rating criteria are inade- quate to describe the severity and symptoms of his disabil- ity; (2) the disability is exceptional or unusual, such as because of marked interference with employment or fre- quent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of jus- tice. Thun v. Shinseki, 572 F.3d 1366, 1368 (Fed. Cir. 2009); 38 C.F.R. § 3.321(b)(1). Here, the Veterans Court did not analyze Mr. Long’s ear pain under the Thun factors. It instead held Mr. Long’s ear pain does not warrant extra-schedular consideration simply because the court found no direct causal link be- tween that pain and Mr. Long’s service-connected hearing loss: Mr. Long’s challenge to the Board’s findings re- garding ear pain falters due to a lack of linkage be- tween the complaint and his hearing loss. He consistently attributed his ear pain to his use of hearing aids and not to hearing loss. He testified to this effect at his Board hearing. And at no point has he shown competent evidence associating his pain with his hearing loss. Without sufficient evi- dence that the alleged unusual functional Case: 21-1669 Document: 44 Page: 4 Filed: 06/29/2022

impairment is attributed to the underlying service- connected disability, extra[-]schedular considera- tion is foreclosed. Long, 33 Vet. App. at 177–78 (internal citations omitted). Mr. Long argues the Veterans Court erred by requiring direct causation between his ear pain and his service-con- nected disability. We agree. A secondary condition is considered service connected if it is “proximately due to or the result of” a service-con- nected disability. 38 C.F.R. § 3.310(a). Direct causation is not required. Nothing in the regulation governing extra- schedular ratings provides otherwise. See 38 C.F.R. § 3.321(b)(1). And requiring direct causation would yield absurd results. For example, it would preclude an amputee from receiving benefits for pain caused by a prosthetic, even though such pain is attributable to the treatment of the service-connected loss of limb. The government con- cedes that this result would be contrary to precedent. Oral Arg. at 15:03–45. More broadly, the government also con- cedes that a secondary condition caused by the treatment of a service-connected disability is compensable. Id. at 14:09–45. We therefore vacate the Veterans Court’s deci- sion requiring Mr. Long to show a direct causal link be- tween his ear pain and his service-connected hearing loss. II Mr. Long further argues that the Veterans Court erred by engaging in fact finding. As an appellate court, the Vet- erans Court cannot generally render fact findings in the first instance. 38 U.S.C. § 7252(b) (“Review in the [Veter- ans] Court shall be on the record of proceedings before the Secretary and the Board.”); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000). “Fact-finding in veterans cases is to be done by the expert [Board], not by the Veterans Court.” Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000). Case: 21-1669 Document: 44 Page: 5 Filed: 06/29/2022

LONG v. MCDONOUGH 5

The Veterans Court purported to review the Board’s findings regarding Mr. Long’s ear pain. Long, 33 Vet. App. at 177–78. The Board, however, made no such findings and did not mention ear pain in its decision. J.A. 32–39. The Veterans Court found in the first instance that there is no causal link between Mr. Long’s ear pain and his hearing loss. Long, 33 Vet. App. at 177–78. While record evidence of his ear pain may be scant, Mr. Long, a pro se litigant at the time, presented sufficient evidence for the Board to make fact findings as to whether his ear pain is linked to his service-connected disability and whether it satisfies the Thun test for extra-schedular consideration. J.A. 67–69, 72. 1 The government argues that the Board’s analysis for other symptoms applies equally to Mr. Long’s ear pain, but it provides no legal or factual basis for that argument. Be- cause the Veterans Court engaged in impermissible fact finding, we vacate and remand with instructions for the Veterans Court to remand to the Board for additional fact findings. CONCLUSION In sum, the Veterans Court erred in holding that direct causation between a secondary condition and an original condition is required for extra-schedular consideration of the secondary condition. The Veterans Court also erred by

1 The dissent suggests that Mr. Long forfeited his ar- guments regarding his ear pain, and in particular whether that ear pain impacted his employment (Thun’s second step). We do not agree. The Board failed to address Mr. Long’s claim of ear pain in its entirety, therefore, its deter- minations regarding whether Mr. Long’s other disabilities interfered with his employment is not a determination that his ear pain did not. There was no Board fact finding to appeal and Mr. Long’s argument that the Board failed to address his ear pain issue in its entirety is sufficient. Case: 21-1669 Document: 44 Page: 6 Filed: 06/29/2022

engaging in fact finding. We therefore vacate the Veterans Court’s decision and remand for further proceedings. VACATED AND REMANDED COSTS Costs to Mr. Long. Case: 21-1669 Document: 44 Page: 7 Filed: 06/29/2022

United States Court of Appeals for the Federal Circuit ______________________

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 16-1537, Senior Judge Mary J. Schoelen, Senior Judge Robert N. Davis, Chief Judge Mar- garet C. Bartley, Judge Amanda L. Meredith, Judge Coral Wong Pietsch, Judge Joseph L. Falvey, Jr., Judge Joseph L. Toth, Judge Michael P. Allen, Judge William S. Green- berg. _____________________

BRYSON, Circuit Judge, dissenting. I do not disagree with the majority’s analysis of the causation issue. But Mr. Long forfeited his argument that he is entitled to extra-schedular benefits for his ear pain because he failed to show “indicia of an exceptional or un- usual disability picture, such as marked interference with employment or frequent periods of hospitalization.” Thun v. Shinseki, 572 F.3d 1366, 1368 (Fed. Cir. 2009). For that Case: 21-1669 Document: 44 Page: 8 Filed: 06/29/2022

reason, the decision of the Veterans Court should be up- held. Notably, Mr. Long’s ear pain has not played a signifi- cant role in his arguments before the Board and before the Veterans Court. At the Board, the only evidence in the rec- ord regarding ear pain was approximately a page and a half of testimony during which Mr. Long mentioned that his hearing aids can cause him ear pain in loud environments. J.A. 67–69. The Board did not address Mr. Long’s ear pain in its opinion, and Mr. Long did not raise the ear pain issue in his initial brief before the Veterans Court, where he was represented by counsel; he raised that issue only in his re- ply brief in that court. J.A. 79. And nowhere in his briefs in the Veterans Court did Mr. Long suggest that he could be eligible for benefits due to his ear pain other than on the basis of an extra-schedular rating. After holding that Mr. Long’s ear pain was not attribut- able to his service-connected hearing loss, the Veterans Court held in the alternative that Mr. Long’s claim failed to show eligibility for extra-schedular benefits because he did not satisfy step two of the Thun test, which requires a showing of an “exceptional or unusual disability picture.” Long v. Wilkie, 33 Vet. App. 167, 177–78 (2020) (en banc); Thun, 572 F.3d at 1368. The court held that Mr. Long’s failure to “challenge any [of the Board’s] findings related to Thun’s second step” was “fatal to his appeal.” Long, 33 Vet. App. at 178. In his opening brief before this court, Mr. Long did not offer any argument regarding the second step of Thun. In particular, he did not argue that his ear pain causes, for example, “marked interference with employment or fre- quent periods of hospitalization.” See Thun, 572 F.3d at 1368. To the extent Mr. Long attempted to make such ar- guments in his reply brief, those arguments are forfeited. See Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336, 1354 (Fed. Cir. 2011). Case: 21-1669 Document: 44 Page: 9 Filed: 06/29/2022

Instead of arguing that the second step of Thun was satisfied, Mr. Long argued in his opening brief before this court that the Board should have considered whether there were other means of compensation through which he might have obtained benefits for his ear pain. Appellant’s Br. 25. But that argument was not made to the Veterans Court. His argument before the Veterans Court was limited to whether the Board erred in its decision not to refer his claim for extra-schedular rating consideration; he did not suggest that the Board should have considered any basis for compensation other than an extra-schedular rating. In sum, to the extent Mr. Long contends that the Vet- erans Court erred in its analysis of his extra-schedular claim under Thun step two, he forfeited that argument by not raising it in his opening brief in this court. And to the extent he contends that the Board should have considered other alternatives besides extra-schedular rating, he for- feited that argument by not raising it before the Veterans Court. I would therefore affirm the decision of the Veter- ans Court on the alternative ground set forth in its opinion.