Marvin O. Johnson v. Eric K. Shinseki

26 Vet. App. 237, 2013 WL 1224810, 2013 U.S. Vet. App. LEXIS 470
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 27, 2013
Docket10-1785
StatusPublished
Cited by19 cases

This text of 26 Vet. App. 237 (Marvin O. Johnson v. Eric K. Shinseki) 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
Marvin O. Johnson v. Eric K. Shinseki, 26 Vet. App. 237, 2013 WL 1224810, 2013 U.S. Vet. App. LEXIS 470 (Cal. 2013).

Opinions

[239]*239SCHOELEN, Judge:

Marvin O. Johnson appeals through counsel a May 14, 2010, Board of Veterans’ Appeals (Board) decision that denied (1) a disability rating in excess of 10% for rheumatic heart disease, (2) a disability rating in excess of 10% for right knee disability, (3) disability compensation benefits for diabetes mellitus on the basis of exposure to herbicides, and (4) reopening a claim for disability compensation benefits for hypertension. The Board granted the appellant a separate 10% disability rating for instability of the right knee.2 The Board also remanded Mr. Johnson’s claim for an increased disability rating for a left knee disability and his entitlement to a total disability rating based on individual unem-ployability (TDIU). Because the Board did not reach a final decision on the remanded matters, the Court has no jurisdiction over them. See Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed.Cir.2005) (holding that the Court does not have jurisdiction over remanded claims).

Mr. Johnson does not address the Board’s denial of his claim for disability compensation benefits for diabetes mellitus or the Board’s determination that there was no new and material evidence to reopen a claim for disability compensation for hypertension. Accordingly, Mr. Johnson has abandoned any challenge to the Board’s decision regarding these matters and the Court need not address the Board decision with respect to these matters. Ford v. Gober, 10 Vet.App. 531, 535-36 (1997) (claims not addressed in appellant’s pleadings are considered abandoned).

Although the appellant states that he is appealing the Board’s findings that he is not entitled to a disability rating in excess of 10% for right knee instability and an increased schedular rating for right knee disability (degenerative changes), he makes no arguments challenging the Board’s determinations regarding the appropriate schedular rating for those conditions. Additionally, Mr. Johnson makes no arguments challenging the Board’s denial of a schedular rating in excess of 10% for rheumatic heart disease. The Board’s determinations in this regard therefore will be affirmed. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (stating that an appellant “must plead with some particularity the allegation of error”), rev’d on other grounds sub nom. Coker v. Peake, 310 Fed.Appx. 371 (Fed.Cir.2008) (per curiam order); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (stating that the appellant bears the burden of persuasion on appeal to show Board error).

The appellant does contest the Board’s determination that he was not entitled to extraschedular rating consideration of his service-connected rheumatic heart disease and right knee disability under 38 C.F.R. § 3.321(b)(1) (2012). In this regard, Mr. Johnson argues that the Board failed to provide an adequate statement of reasons or bases for its conclusions that he is not entitled to a referral for extraschedular consideration for his heart disease and right knee disability on either an individual or on a collective basis. Because the Secretary’s interpretation of 38 C.F.R. § 3.321(b)(1) as limiting extraschedular ratings to individual disabilities is not in[240]*240consistent with the regulation or otherwise plainly erroneous, and the Board did not commit prejudicial error in its analysis of whether to refer Mr. Johnson’s heart and right knee disability for extraschedular consideration on an individual basis, the Board’s decision will be affirmed.

I. BACKGROUND

Mr. Johnson served in the U.S. Army from May 14, 1970, to December 23, 1971. Record (R.) at 846. In March 2008, he filed a claim for increased disability ratings for his service-connected disabilities, including rheumatic heart disease (then rated 10% disabling), and degenerative changes of the right and left knee (each knee then rated 10% disabling). R. at 239.

On March 14, 2008, Mr. Johnson underwent a VA compensation and pension examination of the joints. R. at 220-22. He informed the VA examiner that he had daily, constant pain in both knees. R. at 220. He characterized the pain as an ache that occasionally became sharp, and he noted that the pain was aggravated by walking, bending, climbing stairs, and standing. Id. He reported that his knee disability interfered with walking and standing for long periods. Id. He took Tylenol for the pain and occasionally used heat, ice, bilateral knee braces, and a cane to alleviate his pain. At the time of the VA examination, Mr. Johnson reported that he was self-employed detailing cars. R. at 221.

The examiner noted mild tenderness medially in the left and right knees. Id. Regarding the right knee, the examiner noted that there was no deformity or swelling. R. at 221. There was full extension of the right knee with mild pain, 0 to 105 degrees of flexion with mild pain medially, and no laxity, instability, or crepitus. Range of motion testing did not produce weakness, fatigue, or incoordination, and, with repetitive motion, there was no additional loss of range of motion of the right knee. Id. The examiner noted that Mr. Johnson had a normal gait except for a slight limp favoring the right knee. Id. X-rays showed mild arthritic changes in the right knee. R. at 222. The examiner diagnosed “[bjilateral knee degenerative joint disease,” noting an impression of “minor degenerative changes in the patello-femoral joints bilaterally.” R. at 221-22.

On March 25, 2008, Mr. Johnson underwent a VA heart examination for his service-connected rheumatic heart disease. R. at 217-18. The VA examiner concluded that there was “no evidence of valvular heart disease, nor myocardial disease on physical examination and certainly no symptoms or functional limitation.” R. at 218.

On April 18, 2008, a VA regional office (RO) denied Mr. Johnson’s claims and concluded that he was not entitled to TDIU. R. at 197-208. Mr. Johnson appealed this decision to the Board. R. at 36. On May 14, 2010, the Board issued the decision here on appeal. R. at 3-25. The Board denied referral for extraschedular consideration of Mr. Johnson’s heart disease and right knee disorder.

II. ANALYSIS

A. Combination of Disabilities

Mr. Johnson contends that the plain language of the Secretary’s regulation regarding extraschedular evaluations requires the Secretary to consider both the disability picture presented by an individual disability and by the service-connected disabilities collectively. In its decision, the Board did not consider Mr. Johnson’s entitlement to a referral for extraschedular consideration for his disabilities on a collective basis but determined that Mr. Johnson was not entitled to a referral for [241]*241extraschedular consideration for either his right knee disability or his rheumatic heart disease individually. The crux of the issue before the Court is whether § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis. The Court reviews the interpretation of statutes and regulations de novo. See 38 U.S.C. § 7261(a)(1); Lane v. Principi, 339 F.3d 1331, 1339 (Fed.Cir.2003);

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Bluebook (online)
26 Vet. App. 237, 2013 WL 1224810, 2013 U.S. Vet. App. LEXIS 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marvin-o-johnson-v-eric-k-shinseki-cavc-2013.