Case: 21-1669 Document: 44 Page: 1 Filed: 06/29/2022
United States Court of Appeals
for the Federal Circuit
______________________
WALTER G. LONG,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1669
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1537, Senior Judge Mary J.
Schoelen, Senior Judge Robert N. Davis, Chief Judge Margaret C. Bartley, Judge Amanda L. Meredith, Judge Coral
Wong Pietsch, Judge Joseph L. Falvey, Jr., Judge Joseph
L. Toth, Judge Michael P. Allen, Judge William S. Greenberg.
______________________
Decided: June 29, 2022
______________________
APRIL DONAHOWER, Chisholm Chisholm & Kilpatrick,
Providence, RI, argued for claimant-appellant. Also represented by BARBARA J. COOK, ZACHARY STOLZ; MEGAN
BRITTNEY HALL, Disabled American Veterans, Cold Spring,
KY.
MEEN GEU OH, Commercial Litigation Branch, Civil
Case: 21-1669 Document: 44 Page: 2 Filed: 06/29/2022
2 LONG v. MCDONOUGH
Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., LOREN
MISHA PREHEIM; BRIAN D. GRIFFIN, ANDREW J. STEINBERG,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before MOORE, Chief Judge, LOURIE and BRYSON, Circuit
Judges.
Opinion for the court filed by Chief Judge MOORE.
Dissenting opinion filed by Circuit Judge BRYSON.
MOORE, Chief Judge.
Walter Long appeals a decision of the Court of Appeals
for Veterans Claims affirming the Board of Veterans’ Appeals denial of an extra-schedular rating for Mr. Long’s bilateral hearing loss. Long v. Wilkie, 33 Vet. App. 167 (2020)
(en banc). For the following reasons, we vacate and remand.
BACKGROUND
Mr. Long served in the Air Force from 1969 to 1976 and
spent most of that time as an air traffic control radar repairman, working without ear protection near active runways. In 2009, Mr. Long filed a disability compensation
claim for hearing loss and tinnitus. The Department of
Veterans Affairs (VA) found his hearing loss and tinnitus
were service-connected and assigned Mr. Long a 0% disability rating for his hearing loss and a 10% disability rating
for his tinnitus according to the schedular rating criteria
set forth in 38 C.F.R. § 4.85.
Mr. Long appealed the VA’s decision to the Board, arguing only that the VA should have referred the matter for
extra-schedular consideration under 38 C.F.R.
§ 3.321(b)(1). According to Mr. Long, the schedular rating
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LONG v. MCDONOUGH 3
criteria did not capture the functional effects of his hearing
loss, including ear pain caused by his hearing aids. The
Board rejected Mr. Long’s argument.
The Veterans Court affirmed because it found no direct
causal link between Mr. Long’s ear pain and his service-connected hearing loss. Mr. Long appeals. We have jurisdiction under 38 U.S.C. § 7292(a).
DISCUSSION
I
Disability benefits are generally based on a schedule of
ratings for specific injuries and diseases. 38 U.S.C. § 1155.
However, extra-schedular consideration is available to a
veteran when (1) the schedular rating criteria are inadequate to describe the severity and symptoms of his disability; (2) the disability is exceptional or unusual, such as
because of marked interference with employment or frequent periods of hospitalization; and (3) the award of an
extra-schedular disability rating is in the interest of justice. Thun v. Shinseki,
572 F.3d 1366, 1368 (Fed. Cir.
2009);
38 C.F.R. § 3.321(b)(1).
Here, the Veterans Court did not analyze Mr. Long’s
ear pain under the Thun factors. It instead held Mr. Long’s
ear pain does not warrant extra-schedular consideration
simply because the court found no direct causal link between that pain and Mr. Long’s service-connected hearing
loss:
Mr. Long’s challenge to the Board’s findings regarding ear pain falters due to a lack of linkage between the complaint and his hearing loss. He
consistently attributed his ear pain to his use of
hearing aids and not to hearing loss. He testified
to this effect at his Board hearing. And at no point
has he shown competent evidence associating his
pain with his hearing loss. Without sufficient evidence that the alleged unusual functional
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4 LONG v. MCDONOUGH
impairment is attributed to the underlying service-connected disability, extra[-]schedular consideration is foreclosed.
Long, 33 Vet. App. at 177–78 (internal citations omitted).
Mr. Long argues the Veterans Court erred by requiring
direct causation between his ear pain and his service-connected disability. We agree.
A secondary condition is considered service connected
if it is “proximately due to or the result of” a service-connected disability. 38 C.F.R. § 3.310(a). Direct causation is
not required. Nothing in the regulation governing extra-schedular ratings provides otherwise. See
38 C.F.R.
§ 3.321(b)(1). And requiring direct causation would yield
absurd results. For example, it would preclude an amputee
from receiving benefits for pain caused by a prosthetic,
even though such pain is attributable to the treatment of
the service-connected loss of limb. The government concedes that this result would be contrary to precedent. Oral
Arg. at 15:03–45. More broadly, the government also concedes that a secondary condition caused by the treatment
of a service-connected disability is compensable.
Id. at
14:09–45. We therefore vacate the Veterans Court’s decision requiring Mr. Long to show a direct causal link between his ear pain and his service-connected hearing loss.
II
Mr. Long further argues that the Veterans Court erred
by engaging in fact finding. As an appellate court, the Veterans Court cannot generally render fact findings in the
first instance. 38 U.S.C. § 7252(b) (“Review in the [Veterans] Court shall be on the record of proceedings before the
Secretary and the Board.”); Hensley v. West,
212 F.3d 1255,
1263 (Fed. Cir. 2000). “Fact-finding in veterans cases is to
be done by the expert [Board], not by the Veterans Court.”
Elkins v. Gober,
229 F.3d 1369, 1377 (Fed. Cir. 2000).
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LONG v. MCDONOUGH 5
The Veterans Court purported to review the Board’s
findings regarding Mr. Long’s ear pain. Long, 33 Vet. App.
at 177–78. The Board, however, made no such findings and
did not mention ear pain in its decision. J.A. 32–39. The
Veterans Court found in the first instance that there is no
causal link between Mr. Long’s ear pain and his hearing
loss. Long, 33 Vet. App. at 177–78. While record evidence
of his ear pain may be scant, Mr. Long, a pro se litigant at
the time, presented sufficient evidence for the Board to
make fact findings as to whether his ear pain is linked to
his service-connected disability and whether it satisfies the
Thun test for extra-schedular consideration. J.A. 67–69,
72. 1 The government argues that the Board’s analysis for
other symptoms applies equally to Mr. Long’s ear pain, but
it provides no legal or factual basis for that argument. Because the Veterans Court engaged in impermissible fact
finding, we vacate and remand with instructions for the
Veterans Court to remand to the Board for additional fact
findings.
CONCLUSION
In sum, the Veterans Court erred in holding that direct
causation between a secondary condition and an original
condition is required for extra-schedular consideration of
the secondary condition. The Veterans Court also erred by
1 The dissent suggests that Mr. Long forfeited his arguments regarding his ear pain, and in particular whether
that ear pain impacted his employment (Thun’s second
step). We do not agree. The Board failed to address Mr.
Long’s claim of ear pain in its entirety, therefore, its determinations regarding whether Mr. Long’s other disabilities
interfered with his employment is not a determination that
his ear pain did not. There was no Board fact finding to
appeal and Mr. Long’s argument that the Board failed to
address his ear pain issue in its entirety is sufficient.
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6 LONG v. MCDONOUGH
engaging in fact finding. We therefore vacate the Veterans
Court’s decision and remand for further proceedings.
VACATED AND REMANDED
COSTS
Costs to Mr. Long.
Case: 21-1669 Document: 44 Page: 7 Filed: 06/29/2022
United States Court of Appeals
for the Federal Circuit
______________________
WALTER G. LONG,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1669
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1537, Senior Judge Mary J.
Schoelen, Senior Judge Robert N. Davis, Chief Judge Margaret C. Bartley, Judge Amanda L. Meredith, Judge Coral
Wong Pietsch, Judge Joseph L. Falvey, Jr., Judge Joseph
L. Toth, Judge Michael P. Allen, Judge William S. Greenberg.
_____________________
BRYSON, Circuit Judge, dissenting.
I do not disagree with the majority’s analysis of the
causation issue. But Mr. Long forfeited his argument that
he is entitled to extra-schedular benefits for his ear pain
because he failed to show “indicia of an exceptional or unusual disability picture, such as marked interference with
employment or frequent periods of hospitalization.” Thun
v. Shinseki, 572 F.3d 1366, 1368 (Fed. Cir. 2009). For that
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2 LONG v. MCDONOUGH
reason, the decision of the Veterans Court should be upheld.
Notably, Mr. Long’s ear pain has not played a significant role in his arguments before the Board and before the
Veterans Court. At the Board, the only evidence in the record regarding ear pain was approximately a page and a half
of testimony during which Mr. Long mentioned that his
hearing aids can cause him ear pain in loud environments.
J.A. 67–69. The Board did not address Mr. Long’s ear pain
in its opinion, and Mr. Long did not raise the ear pain issue
in his initial brief before the Veterans Court, where he was
represented by counsel; he raised that issue only in his reply brief in that court. J.A. 79. And nowhere in his briefs
in the Veterans Court did Mr. Long suggest that he could
be eligible for benefits due to his ear pain other than on the
basis of an extra-schedular rating.
After holding that Mr. Long’s ear pain was not attributable to his service-connected hearing loss, the Veterans
Court held in the alternative that Mr. Long’s claim failed
to show eligibility for extra-schedular benefits because he
did not satisfy step two of the Thun test, which requires a
showing of an “exceptional or unusual disability picture.”
Long v. Wilkie, 33 Vet. App. 167, 177–78 (2020) (en banc);
Thun,
572 F.3d at 1368. The court held that Mr. Long’s
failure to “challenge any [of the Board’s] findings related to
Thun’s second step” was “fatal to his appeal.” Long, 33 Vet.
App. at 178.
In his opening brief before this court, Mr. Long did not
offer any argument regarding the second step of Thun. In
particular, he did not argue that his ear pain causes, for
example, “marked interference with employment or frequent periods of hospitalization.” See Thun, 572 F.3d at
1368. To the extent Mr. Long attempted to make such arguments in his reply brief, those arguments are forfeited.
See Hynix Semiconductor Inc. v. Rambus Inc.,
645 F.3d
1336, 1354 (Fed. Cir. 2011).
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LONG v. MCDONOUGH 3
Instead of arguing that the second step of Thun was
satisfied, Mr. Long argued in his opening brief before this
court that the Board should have considered whether there
were other means of compensation through which he might
have obtained benefits for his ear pain. Appellant’s Br. 25.
But that argument was not made to the Veterans Court.
His argument before the Veterans Court was limited to
whether the Board erred in its decision not to refer his
claim for extra-schedular rating consideration; he did not
suggest that the Board should have considered any basis
for compensation other than an extra-schedular rating.
In sum, to the extent Mr. Long contends that the Veterans Court erred in its analysis of his extra-schedular
claim under Thun step two, he forfeited that argument by
not raising it in his opening brief in this court. And to the
extent he contends that the Board should have considered
other alternatives besides extra-schedular rating, he forfeited that argument by not raising it before the Veterans
Court. I would therefore affirm the decision of the Veterans Court on the alternative ground set forth in its opinion.
