Case: 22-1670 Document: 75 Page: 1 Filed: 11/07/2023
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH A. BELL,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1670
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-3207, Judge Coral Wong Pietsch.
______________________
Decided: November 7, 2023
______________________
JAMES MYERS MORTON, Morton & Morton, PLLC,
Knoxville, TN, argued for claimant-appellant.
ANDREW JAMES HUNTER, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, PATRICIA M.
MCCARTHY, LOREN MISHA PREHEIM; EVAN SCOTT GRANT,
BRIAN D. GRIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
Case: 22-1670 Document: 75 Page: 2 Filed: 11/07/2023
2 BELL v. MCDONOUGH
Before REYNA, HUGHES, and STARK, Circuit Judges.
HUGHES, Circuit Judge.
Joseph A. Bell appeals a decision from the Court of Appeals for Veterans Claims, affirming the Board of Veterans’
Appeals decision denying entitlement to an extra-schedular rating for his lumbar spine injury. Because the regulation authorizing the Director of Compensation Service to
approve an extra-schedular rating does not prohibit the Director from considering recommendations from agency officials before making this decision, we affirm.
I
Mr. Bell served on active duty from May 1952 to May
1954 in the U.S. Army, and from November 1955 to April
1957 in the U.S. Air Force. During service, Mr. Bell sustained a lower back injury, and years later Mr. Bell filed a
claim with the Veterans Administration for entitlement to
service connection for a lumbar spine disability. After a series of appeals and remands, Mr. Bell received a 20% disability rating for his lumbar spine disability, effective March
8, 2017. In a December 2019 internal memorandum, the
agency requested an administrative review by the Director
of Compensation Service on the issue of entitlement to an
extra-schedular rating for Mr. Bell’s lumbar spine disability under 38 C.F.R. § 3.321(b)(1). 1 As part of this request,
the agency recommended denying entitlement to an extra-schedular rating. Subsequently, the Director issued an advisory opinion denying entitlement, finding that the “lumbar spine disability picture does not demonstrate an
unusual or exceptional disability pattern that would
1 Section 3.321(b)(1) authorizes the Director to approve an extra-schedular disability rating in an “exceptional case where the schedular evaluation is inadequate
to rate a single service-connected disability[.]”
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BELL v. MCDONOUGH 3
render application of the regular rating criteria impractical.” J.A. 7. The regional office issued a supplemental statement of the case denying entitlement to an extra-schedular
disability evaluation for the lumbar spine disability, and
shortly thereafter, the Board likewise denied entitlement.
Mr. Bell appealed to the Veterans Court, which, in relevant part, affirmed the Board’s decision. Although the
Veterans Court found that the Board failed to discuss certain medical evidence, it also noted that Mr. Bell “d[id] not
present any argument, under any applicable authority,
why he believes that the [c]ourt should reverse the Board’s
denial of an extra[-]schedular rating.” J.A. 12. Therefore,
the Veterans Court held that Mr. Bell failed to demonstrate
that the Board committed any prejudicial error when it denied entitlement to an extra-schedular rating and affirmed
the Board’s decision.
Mr. Bell now appeals. We have jurisdiction over the appeal under 38 U.S.C. § 7292.
II
Our review of a Veterans Court decision is limited by
statute. In cases not presenting a constitutional issue, we
can only review a Veterans Court decision with respect to
a rule of law or to the validity or interpretation of any statute or regulation relied on by the Veterans Court. 38 U.S.C.
§ 7292(a).
III
Mr. Bell’s principal argument on appeal is that the Director erred by considering the agency’s recommendation
to deny entitlement to an extra-schedular rating. Mr. Bell
argues that 38 C.F.R. § 3.321(b), and our holding in Thun
v. Shinseki,
572 F.3d 1366 (Fed. Cir. 2009), prohibits the
Director from considering any agency recommendation before deciding whether to approve or deny an extra-schedular rating. We disagree.
Case: 22-1670 Document: 75 Page: 4 Filed: 11/07/2023
4 BELL v. MCDONOUGH
Section 3.321(b)(1) states in relevant part that:
To accord justice to the exceptional case
where the schedular evaluation is inadequate
to rate a single service-connected disability,
the Director of Compensation Service or his or
her delegate is authorized to approve on the
basis of the criteria set forth in this paragraph
(b), an extra-schedular evaluation commensurate with the average impairment of earning
capacity due exclusively to the disability.
The plain language of the regulation does not prohibit the
Director from considering an agency recommendation before making a decision regarding an extra-schedular rating. Mr. Bell does not cite to any statutory or regulatory
authority in support of his argument that the Director cannot consider an agency recommendation before making this
determination. The regulation does nothing more than
grant the Director authority to approve or grant a request
for an extra-schedular rating.
Furthermore, our holding in Thun endorses the
agency’s long-standing interpretation of § 3.321(b)(1) as allowing agency recommendations alongside any requests for
an extra-schedular determination. We explained in Thun
that “[p]ermitting the regional offices and the Board to issue a ‘field station submission’ in which they recommend
extra-schedular consideration still reserves to the Under
Secretary and the Director the ultimate authority to ‘approve’ those recommendations based on whether the veteran should receive an extra-schedular rating . . . .” Thun,
572 F.3d at 1370. We then held that “section 3.321(b)(1)
does not unambiguously preclude the regional offices and
the Board from performing a threshold inquiry into
whether a veteran qualifies for extra-schedular consideration.”
Id. at 1369–70. Mr. Bell has not argued or demonstrated that the Director failed to exercise independent
discretion when deciding to deny entitlement to an extra-
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BELL v. MCDONOUGH 5
schedular rating, nor has Mr. Bell argued that Thun is
somehow distinguishable from this case.
Accordingly, the Director did not err by considering the
agency’s recommendation before exercising independent
discretion to deny entitlement for an extra-schedular rating.
IV
We have considered the rest of Mr. Bell’s arguments
and find them unpersuasive. Accordingly, we affirm the
Veterans Court’s decision denying entitlement to an extra-schedular rating for Mr. Bell’s lumbar spine disability.
AFFIRMED
COSTS
No costs.
