Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
COREY E. WAITES, APPELLANT,
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: Appellant and U.S. Army veteran Corey Waites appeals through counsel a June 13, 2016, Board of Veterans’ Appeals (Board) decision that awarded him a noncompensable rating for chronic headaches prior to May 13, 2008, and a rating of no more than 30% for that condition thereafter.1
This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). As explained below, the Court will set aside the Board decision on appeal and remand this matter for readjudication consistent with this decision.2
1 During briefing in this appeal, it became clear that the Board’s June 13, 2016, decision contained an error in its “Order” section. Instead of listing May 13, 2008, as the relevant date for the increase in rating for headaches, it listed December 6, 2011. When this was brought to his attention, the Secretary (with the Court’s permission) worked with the Board to have the decision corrected. See Secretary’s Brief (Br.) at 2 n.1. The Court appreciates the Secretary’s efforts in this regard. To the extent that the Court cites to the Board decision here, the citations will be to the original decision in the record. See Record (R.) at 2-40.
2 The Board also denied entitlement to (1) service connection for a low back disability, including as secondary to service-connected bilateral ankle disabilities; (2) an initial compensable rating for residuals of umbilical hernia, other than with respect to a service-connected hernia scar; and (3) an initial rating in excess of 10% for a scar, status post umbilical hernia repair. Appellant has raised no arguments as to these aspects of the Board’s decision.
Accordingly, the appeal is dismissed as to those issues based on appellant’s abandonment. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). The Board granted entitlement to service connection for pes planus and entitlement to a rating for chronic headaches of 30% effective May 13, 2008. These are favorable findings that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). Finally, the Board remanded claims (1) for entitlement to service connection for bilateral hip disorders, (2) for a rating in excess of 10% for bilateral knee tendinitis, and (3) concerning a request to reopen a claim for entitlement for service connection for a stomach disorder.
I. DISCUSSION AND ANALYSIS
Appellant is service connected for chronic headaches. He alleges that the Board erroneously assigned a noncompensable rating for that condition for the period before May 13, 2008, and also erroneously refused to assign a rating above 30% thereafter. See, e.g., Appellant’s Br. at 1. He raises a number of issues concerning the Board’s decision, but the Court will address only two. Doing so is more than sufficient to warrant the remedy appellant seeks: remand.3
The Board’s determination of the appropriate degree of disability is a finding of fact subject to the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). “A factual finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As with any finding on a material issue of fact and law, the Board must support its degree-of-disability determination with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Headaches such as those appellant experiences are generally rated under Diagnostic Code 8100. 38 C.F.R. § 4.124a(2017).4
DC 8100 essentially uses severity and frequency of headaches as the means to rate the condition.5
For present purposes, it is the severity yardstick that is critically important.
These claims are not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004).
3 Indeed, as discussed below, the first error the Court discusses standing alone requires that the decision on appeal be set aside and the matter remanded. The Court has elected to address the second issue to streamline proceedings on remand.
4 8100 Migraine:
With very frequent completely prostrating and prolonged attacks
productive of severe economic inadaptability……………………………….. 50
With characteristic prostrating attacks occurring on an average once a month over last several months………………………………… 30
With characteristic prostrating attacks averaging one in 2 months over last several months………………………………. 10
With less frequent attacks …………………………….. 0
5 The criteria for a 50% rating, the highest provided for under DC 8100, also consider “severe economic inadaptability.” 38 C.F.R. § 4.124a, DC 8100. Appellant argues that the Board erred in discussing this aspect of the rating schedule as well. See, e.g., Appellant’s Br. at 15-17. Given the defects in the Board’s decision discussed above, the Court need not address this argument now. However, appellant is free to raise the matter on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
3 The key to distinguishing among the levels of disability with respect to severity is that a claimant experience an attack that is described in the regulation as “prostrating.” Once one determines whether there are such “prostrating” attacks, then the diagnostic code provides means to use the level of such “prostrating” attacks (“completely” or “characteristic”) and their frequency to determine the appropriate rating. This certainly appears to be a rational means by which to rate this condition. Rational as it may be, however, there is a significant gap in the diagnostic code: there is no definition for “prostrating.” And therein lies the issue that infects the entire decision on appeal.
The lack of a definition for “prostrating” was not something lost on the Board. See R. at 22 (“The rating criteria do not define ‘prostrating.'”). One would think that, having recognized that the regulation did not define a term critical to its operation, the Board would have said what it understood that term to mean. After all, the Board went on to use that term repeatedly in its discussion of appellant’s headaches. Id. at 22-27. Such references make sense not only because of the language of the diagnostic code at issue but also because, as the Board recited, nearly every medical examination report in the file also used that term. Id. at 23 (discussing reports of medical examination in October 2006, May 2008, September 2010, and May 2012). Yet one searches the Board’s decision in vain for a description of its understanding of the term or even what it thought the medical professionals meant by it (and they too did not define it).
The Board’s failure to define “prostrating” frustrates judicial review. There is no way for this Court to assess whether the Board’s decisions about the appropriate rating of appellant’s headaches are clearly erroneous when the Court does not know what the Board understands the term “prostrating” to mean. See Cantrell v. Shulkin, 28 Vet.App. 382, 390-91 (2017) (discussing difficulty of applying judicial review with respect to the undefined phrase “in a protected environment”).6
Imagine, for example, that the question at issue was whether Judge X, who is five feet ten inches tall, is “tall.” The person asked that question responds “no.” Someone else is then called upon to decide whether that answer was clearly erroneous. It would be impossible to make that determination without a definition of “tall.” If the definition of “tall” was pegged to the average height of National Basketball Association players, one would have a certain answer. But if it were based on the average height of the actors who played the Munchkins in the movie The Wizard of Oz, the answer would be quite different.7
6 The Board’s failure in this respect also puts claimants in a difficult position because they will not know what it is they need to establish to obtain the benefits they seek. Appellant suggests such an approach raises constitutional issues under the Due Process Clause. See Appellant’s Br. at 19-20. Given the disposition noted above, the Court need not reach the constitutional question.
The same result obtains here, although the Court notes that the consequences are much more important than in its fanciful example.
The Secretary attempts to make up for the inadequacies of the Board’s discussion of “prostrating” by providing dictionary definitions of the term. See Secretary’s Br. at 8-9. There are at least two problems with the Secretary’s efforts. First, the Secretary’s argument actually supports appellant’s fundamental position on the issue because the definitions he provides differ. Which one is the applicable one? Second, and more fundamentally, the Secretary cannot cure the Board’s failure because it is the Board that must provide a statement of reasons and bases. Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”); see also Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post-hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.” (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988)).
Because the Board did not state what it understood the term “prostrating” to mean and did not inquire into what the medical examiners meant when they used that term, the Court is not in a position to review the Board’s decision. Appellant has not asked that the Court define the term, but instead has requested a remand.
Accordingly, the Court will remand the matter for the Board in the first instance to define the term in its readjudication of appellant’s claims. See Cantrell, 28 Vet.App. at 392; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate).
7 The Board’s discussion reminds the Court of a famous statement in a concurring opinion of former Supreme Court Justice Potter Stewart. In explaining his conclusion that a certain motion picture was not “obscene” he wrote that he could not define that term but that “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)
(Stewart, J. concurring). A member of the Supreme Court may be able to proceed in that way, but the Board (and this Court as well) cannot.
The Court could stop here because the Board’s failure to discuss the definition of “prostrating” infects the entire decision. However, the Court will exercise its discretion to address one additional assertion of error. Appellant suggests that the Board’s statement of reasons and bases is also inadequate because it failed to correctly apply this Court’s decision in Pierce v. Principi, 18 Vet.App. 440 (2004). Appellant’s Br. at 15-20. The Court agrees.
Understanding the regulatory framework is critical here. “When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.” 38 C.F.R. § 4.3 (2017). Additionally, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7 (2017). Further, for “atypical instances[,] it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified”; however, “[f]indings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.” 38 C.F.R. § 4.21 (2017). In Pierce, the Court held that, where the Board refused to award a 50% disability rating for a headache disorder without discussing the “interplay” among §§ 4.3, 4.7, and 4.21, the Board committed a reasons or bases error. 18 Vet.App. at 445.
The Board’s discussion in this matter does not suffice to show that it followed Pierce or that, if it did, it did so correctly. While it is true that the substance of the Board’s decision is more important than its form, and that there is no “magic words” requirement, the Board must sufficiently show that it understands the relevant legal principle and that it has applied it correctly.
The Board’s decision here does not do so. On remand, the Court trusts that the Board will sufficiently heed the mandate of Pierce and provide a statement of reasons and bases for its decision that makes clear that the law has been followed.
Given this disposition, the Court need not address the remaining arguments and issues appellant raised at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001). On remand, appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail a critical examination of the justification for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.App. 6 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).
After consideration of the parties’ briefs and a review of the record, the Court SETS ASIDE the Board’s June 13, 2016, decision on appeal and REMANDS this matter for further proceedings consistent with this decision.
DATED: November 6, 2017
Robert V. Chisholm, Esq.
VA General Counsel (027)