UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 14-3390

NATHAN YANCY, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued January 12, 2016 Decided February 26, 2016)

Jenna E. Zellmer of Providence, Rhode Island, for the appellant.

Shereen M. Marcus, with Leigh A. Bradley, General Counsel, Mary Ann Flynn, Assistant

General Counsel, Christopher W. Wallace, Deputy Assistant General Counsel, and Tracy K. Alsup

on the brief, all of Washington, D.C., for the appellee.

Before LANCE, DAVIS, and GREENBERG, Judges.

LANCE, Judge: The appellant, veteran Nathan Yancy, appeals through counsel an August

21, 2014, decision of the Board of Veterans' Appeals (Board) that, in part, denied entitlement to

increased disability ratings for a foot disability.1

 Record (R.) at 2-36. On September 18, 2015, this

case was submitted to a panel for review, and on October 20, 2015, the Court ordered the parties to

file supplemental memoranda of law. The parties filed their supplemental memoranda on November

19, 2015. 

For the reasons that follow, the Court will vacate those parts of the Board's decision

addressing Mr. Yancy's various foot disabilities, including the proper disability ratings for pes

1

 The Board also remanded Mr. Yancy's claim for entitlement to service connection for vasovagal syncope, and

the Court lacks jurisdiction over that matter. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344

(Fed. Cir. 2000). In addition, the Board's determinations that Mr. Yancy is entitled to a 30% disability rating for bilateral

pes planus and to a separate rating of 10% for right knee instability constitute favorable findings, which the Court cannot

disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
planus and hallux valgus, and to entitlement to referral for extraschedular consideration, and it will

remand those matters for further proceedings. As Mr. Yancy presents no argument concerning the

Board's denial of entitlement to service connection for an enlarged heart or to the Board's denial of

increased schedular evaluations for status post left knee medial meniscectomy, left knee instability,

right knee retropatellar irritation, right knee instability, a right eardrum rupture, small bilateral

varicoceles, and an umbilical hernia, the Court holds that Mr. Yancy has abandoned those issues and

will therefore dismiss the appeal as to those matters. See Pederson v. McDonald, 27 Vet.App. 276,

285 (2015) (en banc).

I. BACKGROUND

Mr. Yancy served in the U.S. Army from November 1983 to August 1993 and from May

1995 to October 2006. R. at 521, 631, 673. In June 2006, he filed a claim for entitlement to service

connection for bilateral foot disabilities, among other conditions,2 specifically noting problems with

his arches and bunions. R. at 630-39. In April 2008, the Cleveland, Ohio, VA regional office (RO)

issued a decision granting entitlement to service connection for, inter alia, bilateral pes planus,

assigning a 10% disability rating, and hallux valgus of the left and right great toes, assigning

noncompensable ratings. R. at 509-22.

Mr. Yancy filed a Notice of Disagreement (NOD) in April 2009, which, in part, disputed the

disability ratings assigned for his foot disabilities. R. at 463-71. In it, he stated that he was "unable

to stand in one spot for long periods and in connection with the condition and pain in both knees,"

R. at 465, and that, "[d]ue to the current condition of [his] feet and knees, [he] ha[d] been unable to

remain as physically active," R. at 466. In his NOD, he also sought entitlement to service

connection for hemorrhoids, R. at 469-70, which the RO granted in a June 2010 decision, assigning

a 10% disability rating, R. at 309-14. The RO issued a Statement of the Case in April 2011, R. at

211-49, and Mr. Yancy perfected his appeal to the Board in June 2011, R. at 181-203.

On August 21, 2014, the Board issued the decision here on appeal. R. at 2-36. In it, the

Board discussed Mr. Yancy's foot disabilities, finding that he was entitled to an increased 30%

2

 In addition to Mr. Yancy's foot disabilities, he also requested service connection for left and right knee

disabilities, an umbilical hernia, a collar bone injury, fainting, an enlarged heart, bilateral hip pain, a left eardrum rupture,

rib pain, and complications of a vasectomy. R. at 635.

2
disability rating for his bilateral pes planus under 38 C.F.R. § 4.71a, diagnostic code (DC) 5276

(2015). R. at 20. In addition, the Board considered whether Mr. Yancy's bilateral hallux valgus

warranted increased disability ratings and whether he was entitled to additional ratings under other

diagnostic codes. R. at 20-24. It determined, however, that Mr. Yancy did not have "severe" hallux

valgus, warranting a compensable rating for that condition under DC 5280, that he did not meet the

requirements for a separate compensable rating for hammertoe under DC 5282, and that he had not

been diagnosed with weak foot (DC 5277), claw foot (DC 5278), Morton's disease (DC5279), hallux

rigidus (DC 5281), malunion or nonunion of the tarsal or metatarsal bones (DC 5283), or other foot

injuries (DC 5284). Id. Finally, the Board determined that referral for extraschedular consideration

was not warranted, as the various schedular ratings were adequate. R. at 28-30. This appeal

followed.

II. THE PARTIES' ARGUMENTS

Mr. Yancy raises two principal arguments on appeal. First, he contends that the Board failed

to provide an adequate statement of reasons or bases to support its determination that he was not

entitled to a disability rating greater than 30% for his foot disability. Appellant's Brief (Br.) at 6-10.

Second, Mr. Yancy argues that the Board erred when it determined that referral for extraschedular

consideration was not warranted. Appellant's Br. at 10-14.

A. Foot Disability

With respect to his foot disability, Mr. Yancy asserts that the Board failed to adequately

explain why he was not entitled to increased or additional disability ratings under DC 5281, for

hallux rigidus, or DC 5284, for "Foot injuries, other." Id. at 7-10. He also argues that the Board

clearly erred when it determined that he had not been diagnosed with hallux rigidus and thus failed

to discuss whether he was entitled to a compensable rating pursuant to DC 5281. Id. at 6-7.

The Secretary responds that, "to the extent that it was error for the Board to find that [the

a]ppellant was not diagnosed with hallux rigidus," any error is harmless, as DC 5281 instructs VA

to rate severe hallux rigidus as hallux valgus and Mr. Yancy is already service connected for that

condition. Secretary's Br. at 5-6. In addition, the Secretary states that "it is clear [that DC] 5284 is

not applicable in this case," as the plain language of that DC "foreclose[s] rating a foot condition . . .

that was not the result of an in-service injury." Id. at 7.

3
In his reply brief and supplemental memorandum of law, Mr. Yancy argues that DC 5284

is a catch-all provision, and so the Board erred in failing to discuss whether he was entitled to a

disability rating under that DC. Appellant's Reply Br. at 2-4; Appellant's Supplemental (Supp.)

Memorandum (Mem.) at 5-8. The Secretary, in contrast, contends that DC 5284, which on its face

pertains to "Foot injuries, other," is applicable only to disabilities which are the result of traumatic

injury and are not otherwise listed in the rating schedule. Secretary's Supp. Mem. at 3-7.

B. Extraschedular Referral

With regard to the Board's determination that referral for extraschedular consideration was

not warranted, Mr. Yancy contends that the Board failed to properly conduct the three-part analysis

required by Thun v. Peake, 22 Vet.App. 111, 115 (2008), as it "fail[ed] to adequately compare all

of [his] symptoms to those contemplated by the rating criteria," as required by the first Thun

element, and did not discuss the second Thun element. Appellant's Br. at 12, 10-13. He also argues

that the Board should have discussed whether he was entitled to extraschedular referral for his

service-connected disabilities on a collective basis pursuant to Johnson v. McDonald, 462 F.3d 1362

(Fed. Cir. 2014). Appellant's Br. at 13-14.

The Secretary responds that the Board properly considered all of Mr. Yancy's foot symptoms

and determined that they were adequately contemplated by the schedular criteria for the various foot

disabilities. Secretary's Br. at 8-9. As a result, the Secretary contends that the Board correctly found

that the first Thun element had not been met, and so it was not required to reach the second Thun

element. Id. at 9. In addition, the Secretary argues that the Board was not required to discuss

whether the combined effects of Mr. Yancy's disabilities warranted extraschedular referral, as that

issue was not argued by Mr. Yancy below or reasonably raised by the record and Mr. Yancy cited

no evidence on appeal demonstrating the collective impact of his service-connected disabilities. Id.

at 10-11.

In his reply brief and supplemental memorandum of law, Mr. Yancy argues that the Board's

failure to discuss the second Thun element impacted its analysis of the first Thun element, as

"evidence which satisfies the second [Thun] element is also evidence which establishes that the

severity of a claimant's disability is outside the scheduler criteria." Appellant's Reply Br. at 5; see

Appellant's Supp. Mem. at 9-13 (arguing that the first and second Thun elements are intertwined). 

He also contends that Johnson requires the Board to discuss referral for extraschedular consideration

4
in all cases where a claimant has multiple service-connected disabilities, regardless of whether there

is any evidence that those disabilities combine to produce additional symptoms. Appellant's Supp.

Mem. at 13-17. Finally, he asserts that the Board's Johnson analysis should not be limited to the

disabilities included in an appeal but also must consider disabilities whose ratings are not in

appellate status. Id. at 18-19.

The Secretary argues that "each of the first two Thun elements involves a separate and

distinct analysis by the RO or Board," and so "[r]eferral is not warranted . . . if either element is not

met." Secretary's Supp. Mem. at 10, 7-13. He contends that, although the "two elements are

interrelated," id. at 11, they are independent, and therefore "the RO or Board need not consider or

discuss both elements in each and every case," id. at 12. Thus, "where the Board's analysis

encompasses both elements, regardless of whether it was required to do so, any error with regard

to the analysis of either element would be inconsequential if the analysis of the other element is

adequate." Id.

With respect to Johnson, the Secretary argues that, 

if a claimant does not affirmatively raise a combined-effects theory or the record

does not reasonably show a disability picture that is exceptional or unusual by any

interplay among the service-connected disabilities, then the Board is under no

obligation to undertake the impossible task of inventing or theoretically considering

such interplay.

Id. at 14. In other words, "[t]he record would need to raise more than a mere observation that a

claimant has more than one service-connected disability that is symptomatic in order to trigger an

extraschedular analysis." Id. at 15. Finally, the Secretary "concedes that the Board does have

jurisdiction to consider the symptomatology of" disabilities outside the scope of an appeal in the

context of a Johnson analysis for the "limited purpose" of determining the "interplay of those other

service-connected disabilities" with the disabilities encompassed by the appeal. Id. at 17.

III. ANALYSIS

A. Foot Disability

Turning first to the Board's discussion of the proper schedular rating for Mr. Yancy's foot

disability, the Court agrees that the Board failed to provide an adequate statement of reasons or

bases to support its decision. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527

5
(1995). Specifically, the Board failed to properly consider whether Mr. Yancy was entitled to

disability ratings under DCs 5281 and 5284.

1. DC 5281

DC 5281 pertains to "Hallux rigidus, unilateral, severe," and requires that condition to be

rated as severe hallux valgus under DC 5280. 38 C.F.R. § 4.71a, DC 5281. DC 5280, in turn,

provides two separate paths to a 10% evaluation for hallux valgus: first, with "[o]peration with

resection of metatarsal head;" and second, for severe hallux valgus "if equivalent to amputation of

great toe." Id., DC 5280.

In the decision on appeal, the Board summarily determined that Mr. Yancy was not entitled

to a disability rating under DC 5281, as it found that he had not been diagnosed with hallux rigidus. 

R. at 23. As Mr. Yancy correctly notes, however, Appellant's Br. at 8, the record contains a

November 8, 2010, medical opinion that includes a diagnosis of "[c]hronic metatarsalgia with pes

planus and hallux valgus et rigidus on both sides." R. at 257, 255-58. The Board does not discuss

this notation nor explain whether a diagnosis of "hallux valgus et rigidus" encompasses a diagnosis

of hallux rigidus, thereby frustrating the Court's review of its decision. See Allday, 7 Vet.App. at

527.

Although the Secretary contends that any failure by the Board to consider entitlement to a

disability rating under DC 5281 is harmless in light of Mr. Yancy's noncompensable ratings under

DC 5280, Secretary's Br. at 5-6, his argument presupposes that any hallux ridigus suffered by Mr.

Yancy is less than severe—a determination which the Board must make in the first instance.3

 See

Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (recognizing that 38 U.S.C. § 7261(c)

prohibits this "Court from making factual findings in the first instance"). Indeed, should the Board

determine that Mr. Yancy suffers from severe hallux rigidus, he would be entitled to bilateral 10%

disability ratings under DCs 5280 and 5281, rather than the noncompensable ratings currently

assigned. See 38 C.F.R. § 4.71a, DCs 5280, 5281. Remand is therefore warranted for the Board to

3

 To be clear, the Court's review is frustrated by the Board's failure to adequately explain its determination as

to whether Mr. Yancy suffered from hallux rigidus at all. As the Board never reached the question of whether a hallux

rigidus disability was severe, the Court lacks the necessary factual predicate to determine whether the Board's error here

was harmless. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error");

Shinseki v. Sanders, 556 U.S. 396, 406 (2009); Medrano v. Nicholson, 21 Vet.App. 165, 171 n.1 (2007) ("Congress's

prohibition of de novo factfinding and its mandate that the Court take due account of the rule of prejudicial error, two

parts of the same statute, must both be given full effect.").

6
discuss whether the November 2010 medical opinion contains a diagnosis of hallux rigidus and, if

so, whether it is severe. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ("Where the Board has . . .

failed to provide an adequate statement of reasons or bases[,] . . . a remand is the appropriate

remedy.").

2. DC 5284

Similarly, the Court holds that the Board failed to provide an adequate statement of reasons

or bases for its determination that Mr. Yancy was not entitled to an evaluation under DC 5284. See

38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527. DC 5284 applies to "Foot injuries, other," and

provides for 10%, 20%, and 30% evaluations for moderate, moderately severe, and severe

disabilities, respectively. 38 C.F.R. § 4.71a, DC 5284. Recently, in Copeland v. McDonald, the

Court considered the meaning of the word "other" as used in DC 5284. 27 Vet.App. 333, 337-38

(2015). The Court held that, "as a matter of law, DC 5284 does not apply to the eight [other] foot

conditions specifically listed in § 4.71a," and so listed conditions could not be rated by analogy

under that DC. Id. at 338. The Court has not, however, addressed the meaning of the word "injury"

under DC 5284 or whether unlisted conditions may be rated by analogy under that DC.

"The starting point in interpreting a statute [or regulation] is its language." Good Samaritan

Hosp. v. Shalala, 508 U.S. 402, 409 (1993); see Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994)

("The canons of construction of course apply equally to any legal text and not merely to statutes."). 

"Where a statute's language is plain, and its meaning clear, no room exists for construction. There

is nothing to construe." Gardner v. Derwinski, 1 Vet.App. 584, 587-88 (1991), aff'd sub nom.

Brown v. Gardner, 513 U.S. 115 (1994). "In the absence of an express definition, words are given

their ordinary meaning," Prokarym v. McDonald, 27 Vet.App. 307, 310 (2015) (citing Terry v.

Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)), but statutes and regulations "must be considered

as a whole and in the context of the surrounding statutory [and regulatory] scheme," Gazelle v.

McDonald, __ Vet.App. __, __, 2016 WL 386543, at *2 (Feb. 2, 2016) (citing King v. St. Vincent's

Hosp., 502 U.S. 215, 221 (1991)).

"Injury" is not defined in § 4.71a. Cf. O'Bryan v. McDonald, 771 F.3d 1376, 1378 (Fed. Cir.

2014) ("Congress has not defined 'injury' or 'disease.'"). The underlying statutory and regulatory

framework, however, generally distinguish between "injuries" and "diseases," see, e.g., 38 U.S.C.

§ 1110 (providing for compensation "[f]or disability resulting from personal injury suffered or

7
disease contracted in line of duty"); 38 C.F.R. §§ 3.1, 3.4 (2015); but see 38 U.S.C. § 1155 ("The

Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific

injuries or combination of injuries."). "It is commonplace to consult dictionaries to ascertain a term's

ordinary meaning." Nielson v. Shinseki, 23 Vet.App. 56, 59 (2009). Dictionaries define "injury"

as "[p]hysical damage to a person's body," Injury, BLACK'S LAW DICTIONARY (9th ed. 2009), and

"harm or hurt; usually applied to damage inflicted on the body by an external force," DORLAND'S

ILLUSTRATED MEDICAL DICTIONARY 941 (32d ed. 2012). The Court therefore holds that the plain

meaning of the word "injury" limits the application of DC 5284 to disabilities resulting from actual

injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions.

Even if the Court were to find the plain meaning of "injury" ambiguous, it would reach the

same conclusion. When faced with an ambiguous regulation, an agency's interpretation is

controlling unless it is "'plainly erroneous or inconsistent with the regulation[].'" Auer v. Robbins,

519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizen's Council, 490 U.S. 332, 359

(1989)). "Deference to an agency's interpretation of its own regulations is broader than deference

to the agency's construction of a statute, because in the latter case the agency is addressing

Congress's intentions, while in the former it is addressing its own." Cathedral Candle Co. v. U.S.

Int'l Trade Comm'n, 400 F.3d 1352, 1363-64 (Fed. Cir. 2005). "This high degree of deference

applies even when that interpretation is first advanced during litigation." Gray v. McDonald,

27 Vet.App. 313, 321 (2015) (citing Reizenstein v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009)).

Here, the Secretary asserts that VA intended the word "injury," as used in DC 5284, to be

limited to "the results of an external trauma rather than a degenerative process." Secretary's Supp.

Mem. at 4 n.1. In support of this argument, he cites several VA General Counsel Precedent

Opinions defining "injury" in other contexts. Id.; see VA Gen. Coun. Prec. 4-2002 (May 14, 2002)

(defining "injury" to "to include harm not only from a violent encounter but also from exposure to

a foreign substance, such as a vaccine"); VA Gen. Coun. Prec. 08-2001 (Feb. 26, 2001) ("'[I]njury'

refers to the results of an external trauma, rather than a degenerative process."); VA Gen. Coun.

Prec. 86-90 (Jul. 18, 1990) (defining "injury" for the purposes of 38 U.S.C. § 101(24) as "harm

resulting from some type of external trauma," as distinguished "from some type of internal infection

or degenerative process").

8
Although Mr. Yancy argues that Delisle v. McDonald, 789 F.3d 1372 (Fed. Cir. 2015),

compels a broader reading of DC 5284, Appellant's Supp. Mem. at 3, the Court does not agree. In

Delisle, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) interpreted the meaning

of DC 5257, which pertains to knee disabilities, and held that it was not a "catch-all" provision. 

789 F.3d at 1374-75. It doing so, it cited DC 5284 as an example of a "catch-all" provision, as it

"excludes any reference to specific symptoms." Id. at 1375. The Federal Circuit did not, however,

interpret the meaning of "injury" in DC 5284, and it specifically held that reviewing courts must

"give[] meaning to both the title and the language" of a DC. Id. Thus, nothing in the Secretary's

proffered interpretation of DC 5284 is contrary to Delisle.

Similarly, although Mr. Yancy generally asserts that "[l]imiting the application of DC 5284

only to injuries incurred in service eliminates compensation for veterans who are legitimately

service connected due to a foot condition in service but do not suffer from one of the eight other

enumerated foot disabilities," Appellant's Supp. Mem. at 5, he does not explain why any unlisted

conditions could not be rated by analogy to one of the other foot DCs or, indeed, to DC 5284 by

analogy. The Court therefore holds that the Secretary's interpretation of "injury" is not plainly

erroneous or inconsistent with the regulation and is, therefore, entitled to deference. See Auer,

519 U.S. at 461.

Although the Court holds that DC 5284 is limited on its face to actual injuries, this holding

does not end the Court's inquiry into whether the Board erred in this case. In Hudgens v. Gibson,

the Court held that the plain language of DC 5055, which applies to prosthetic replacements of the

knee joint, "does not apply to partial knee replacements." 26 Vet.App. 558, 560 (2014); see

38 C.F.R. § 4.71a, DC 5055. Nonetheless, the Court concluded that a partial knee replacement could

be rated by analogy under DC 5055, provided that (1) the functions affected by the conditions were

analogous; (2) the anatomical localizations of the conditions were analogous; and (3) the

symptomatologies of the conditions were analogous. Id. at 563; see Lendenmann v. Principi,

3 Vet.App. 345, 350-51 (1992) (discussing the three factors VA must consider to determine

"whether a listed disease or injury is "closely related" to [a] veteran's ailment); 38 C.F.R. §§ 4.20,

4.27 (2015). Thus, as in Hudgens, although the plain language of DC 5284 limits its application to

9
disabilities resulting from actual injuries to the foot, nothing prevents the Board from rating closely

related conditions by analogy under that DC.4

Here, the Board tersely determined that Mr. Yancy had not been diagnosed with "other foot

injuries ([DC] 5284)," R. at 23, and Mr. Yancy does not challenge this finding, see Cromer v.

Nicholson, 19 Vet.App. 215, 217 (2005) ("[I]ssues not raised on appeal are considered abandoned.");

aff'd, 445 F.3d 1346 (Fed. Cir. 2006). Mr. Yancy, however, has been diagnosed with conditions not

explicitly listed in the rating schedule, including calcaneus foot deformity and heel spurs, and those

conditions thus may be rated by analogy. See 38 C.F.R. §§ 4.20, 4.27; cf. Copeland, 27 Vet.App.

at 337 ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). 

The Board did not discuss whether Mr. Yancy's unlisted conditions could be rated by analogy

pursuant to DC 5284, and its failure to do so renders its statement of reasons or bases inadequate,

requiring remand. See Tucker, 11 Vet.App. at 374; Allday, 7 Vet.App. at 527.

As the Board failed to provide an adequate statement of reasons or bases to support its denial

of increased schedular disability ratings for Mr. Yancy's foot disability, the Court will vacate the

Board's determinations as to those matters and remand them for further proceedings consistent with

this decision.

B. Extraschedular Referral

With respect to the Board's determination that Mr. Yancy was not entitled to referral for

extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1), the Court again agrees that the

Board failed to provide an adequate statement of reasons or bases to support its decision. See

38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527.

1. Case Law Prior to Johnson

Generally, the Board is required to consider all issues raised by a claimant or reasonably

raised by the evidence of record. Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff'd sub nom.

Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Prior to the Federal Circuit's decision in

Johnson, this Court clarified that the Board must consider referral for extraschedular consideration

"[w]here there is evidence in the record that shows exceptional or unusual circumstances or where

4

 Counsel for the Secretary conceded as much at oral argument, although she speculated that "if it's not a

condition caused by an injury, one of these other [DC]s would more likely be more analogous." Oral Arg. at 29:00.

10
the veteran has asserted that a schedular rating is inadequate." Colayong v. West, 12 Vet.App. 524,

536 (1999); see also Thun, 22 Vet.App. at 115 ("When either a claimant or the evidence of record

suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue

of whether referral for an extraschedular rating is warranted."); Smallwood v. Brown, 10 Vet.App.

93, 98 (1997) (holding that the Board must address "the issue of whether an extra-schedular rating

is warranted [when it] is reasonably raised by the Board's own factual findings"). Where, however,

"§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts

found by the Board," the Board is not required to discuss whether referral is warranted. Dingess v.

Nicholson, 19 Vet.App. 473, 499 (2006), aff'd, 226 F. App'x 1004 (Fed. Cir. 2007).

Thus, when either the claimant or the record raises the issue of entitlement to extraschedular

referral, the Board is required to undertake the three-part test set forth in Thun. 22 Vet.App. at 115;

see Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) (clarifying that, although the Court in Thun

identified three "steps," they are, in fact, necessary "elements" of an extraschedular rating). The first

element in the inquiry is to determine whether "the evidence before VA presents such an exceptional

disability picture that the available schedular evaluations for that service-connected disability are

inadequate." Thun, 22 Vet.App. at 115; see Sowers v. McDonald, __ Vet.App. __, __, 2016 WL

563055, at *4 (Feb. 12, 2016) ("The rating schedule must be deemed inadequate before

extraschedular consideration is warranted."). This inquiry requires "a comparison between the level

of severity and symptomatology of the claimant's service-connected disability with the established

criteria found in the rating schedule for that disability." Thun, 22 Vet.App. at 115. "[I]f the criteria

reasonably describe the claimant's disability level and symptomatology, then the claimant's disability

picture is contemplated by the rating schedule, . . . and no referral is required." Id.

If the adjudicator determines that the first element is satisfied, the second part of the inquiry

requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits

other related factors," such as marked interference with employment or frequent periods of

hospitalization. Id. at 116. Then, if the first two elements have been satisfied, the adjudicator must

refer the claim to the Under Secretary for Benefits or the Director of the Compensation Service for

a determination of whether an extraschedular rating is warranted. Id.

Essentially, the first Thun element compares a claimant's symptoms to the rating criteria,

while the second addresses the resulting effects of those symptoms. See Anderson, 22 Vet.App. at

11
429 n.2 (holding that a "loss of hypothetical employment advancement opportunities and an inability

to work . . . have little relevance to the threshold inquiry into the adequacy of the rating schedule");

Thun, 22 Vet.App. at 117 n.3 ("Evidence of a claimant's lost income . . . might be relevant . . . in the

second or third steps of the analysis . . . , but unequivocally is not part of the threshold inquiry."). 

Thus, as the Secretary argues, Secretary's Supp. Mem. at 11, the first and second Thun elements,

although interrelated, involve separate and distinct analyses. As the two inquiries are independent,

an error with respect to one element does not necessarily affect the Board's analysis of the other

element.5

 If either element is not met, then referral for extraschedular consideration is not

appropriate. Thun, 22 Vet.App. at 116; see also Anderson, 22 Vet.App. at 427.

2. The Effect of Johnson

The discussion above applies to referral for extraschedular consideration based on the effects

of a single service-connected disability. In Johnson, however, the Federal Circuit held that, contrary

to the Secretary's interpretation, "§ 3.321(b)(1) provides for extra-schedular consideration based on

the collective impact of multiple disabilities." 762 F.3d at 1365. Thus, where a claimant has

multiple service-connected disabilities, the Federal Circuit held that those disabilities "may be

considered together in referring [the claimant] for extra-schedular consideration." Id. The Federal

Circuit reasoned that "[l]imiting referrals for extra-schedular evaluation to considering a veteran's

disabilities individually ignores the compounding negative effects that each individual disability

may have on the veteran's other disabilities." Id. at 1366.

Nothing in Johnson changes the long-standing principle that the issue of whether referral for

extraschedular consideration is warranted must be argued by the claimant or reasonably raised by

the record. Although Mr. Yancy argues that Johnson stands for the proposition that

"[e]xtraschedular referral is always raised by the record when a veteran has multiple service5

 Although the first and second Thun elements involve separate factual questions, both inquiries require a full

and accurate description of a claimant's disability picture. While an error in the Board's analysis of whether a claimant's

symptoms are contemplated by the rating schedule may have no bearing on the Board's analysis of whether those

symptoms result in related factors of the kind contemplated by § 3.321(b)(1), an error in the Board's findings regarding

the nature and severity of a claimant's symptoms could affect the Board's analysis of both the first and second Thun

elements. Therefore, where the Board addresses both the first and second Thun elements and the Court determines that

the Board erred with respect to one of the elements, it must determine whether that error is prejudicial in light of the

Board's analysis of the other element and its underlying factual findings regarding the claimant's disability picture. See

38 U.S.C. § 7261(b)(2); Sanders, 556 U.S. at 409.

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connected disabilities," Appellant's Supp. Mem. at 13 (bold emphasis removed), Johnson does not

make such a categorical holding. Rather, it provides only that "referral for extra-schedular

evaluation may be based on the collective impact of [a] veteran's disabilities." Johnson, 762 F.3d

at 1365 (emphasis added). The Court therefore holds that the Board is required to address whether

referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis

only when that issue is argued by the claimant or reasonably raised by the record through evidence

of the collective impact of the claimant's service-connected disabilities. See, e.g., Thun, 22 Vet.App.

at 115; Robinson, 21 Vet.App. at 552.

Similarly, nothing in Johnson changes the Board's obligation to conduct the three-part

analysis set forth in Thun. When considering whether referral is warranted based on the combined

effects of a veteran's service-connected disabilities, the Board first must compare the veteran's

symptoms with the assigned schedular ratings. If the schedular evaluations reasonably contemplate

the veteran's symptomatology—including any symptoms resulting from the combined effects of

multiple service-connected disabilities—then the first Thun step is not satisfied, and referral is not

warranted. See Thun, 22 Vet.App. at 116. Conversely, if the schedular evaluations are not adequate,

then the Board must proceed to the second element of the Thun analysis.

Finally, although Johnson requires the Board, in certain cases, to discuss the collective

impact of a claimant's service-connected disabilities, it does not alter the Board's jurisdiction over

individual schedular or extraschedular ratings. Although the Board must consider any combined

effects resulting from all of a claimant's service-connected disabilities insofar as they impact the

disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is

warranted solely for any disability or combination of disabilities not in appellate status, just as it

lacks jurisdiction to examine the proper schedular rating for a disability not on appeal. See DiCarlo

v. Nicholson, 20 Vet.App. 52, 55 (2006) (holding that the Board lacks jurisdiction to make findings

on issues that are not on appeal).

3. Application to Mr. Yancy's Case

Turning to the merits of the case, both parties agree that the Board failed to address whether

Mr. Yancy was entitled to referral for extraschedular consideration for his service-connected

disabilities on a collective basis. See Appellant's Br. at 13-14; Secretary's Br. at 10-11. At oral

argument, Mr. Yancy's counsel conceded that he did not explicitly raise that issue below. Oral Arg.

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at 16:02. Thus, the Board's failure to discuss referral for Mr. Yancy's disabilities on a collective

basis is error only if that issue was reasonably raised by the record. See, e.g., Thun, 22 Vet.App. at

115; Robinson, 21 Vet.App. at 552.

Here, as Mr. Yancy argues, the record contains evidence of the collective impact of his

service-connected disabilities. See Appellant's Reply Br. at 7-8; Appellant's Supp. Mem. at 16-17. 

For example, in his June 2011 Substantive Appeal, Mr. Yancy stated that, "[d]ue to the current

condition of [his] feet and knees, [he] ha[s] been unable to remain as physically active" and that he

was not able to stand for longer than 15 to 20 minutes. R. at 199. At the same time, the record

reflects that Mr. Yancy experienced "discomfort upon prolonged sitting" due to his serviceconnected hemorrhoids. R. at 310. Thus, the record reflects that Mr. Yancy cannot stand or sit for

long periods of time as a result of his service-connected disabilities.

The Court therefore holds that the issue of entitlement to referral for extraschedular

consideration based on Mr. Yancy's service-connected disabilities on a collective basis was

reasonably raised by the record. As a result, the Board erred by failing to discuss the combined

effects of Mr. Yancy's disabilities in its analysis of the first Thun element. Moreover, because the

Board did not reach the second Thun element, the Court cannot hold that the Board's error was

harmless. Accordingly, the Court will vacate the Board's determination that Mr. Yancy is not

entitled to referral for extraschedular consideration and remand that matter for further proceedings.

C. Remand Instructions

On remand, the Board must determine whether the November 8, 2010, medical opinion

includes a diagnosis of hallux rigidus and, if so, whether Mr. Yancy is entitled to an evaluation

under DC 5281. The Board also must address whether Mr. Yancy's unlisted diagnoses entitle him

to a rating by analogy under DC 5284. Finally, the Board must discuss whether the combined

effects of Mr. Yancy's service-connected disabilities warrant referral for extraschedular

consideration.

Mr. Yancy 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), and the Board must consider any such evidence or argument submitted. 

See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in

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accordance with 38 U.S.C. §§ 5109B and 7112 (requiring Secretary to provide for "expeditious

treatment" of claims remanded by Board or Court).

IV. CONCLUSION

In light of the foregoing, those parts of the Board's August 21, 2014, decision denying

entitlement to a disability rating greater than 30% for bilateral pes planus, to compensable disability

ratings for hallux valgus of the left and right great toes, and to referral for extraschedular

consideration are VACATED, and those matters are REMANDED for further proceedings consistent

with this decision. The appeal is DISMISSED as to the Board's denial of entitlement to service

connection for an enlarged heart and to increased schedular evaluations for status post left knee

medial meniscectomy, left knee instability, right knee retropatellar irritation, right knee instability,

a right eardrum rupture, small bilateral varicoceles, and an umbilical hernia.

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