             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 service-



         5
          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.

                                                   13
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 service-
connected 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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