          United States Court of Appeals
                     For the First Circuit

No. 15-1667

                        JEANNETTE BUNTIN,

                      Plaintiff, Appellant,

                               v.

         CITY OF BOSTON; JAMES MCGONAGLE; SCOTT ALTHER,

                     Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]

                             Before

                   Kayatta, Stahl, and Barron,
                         Circuit Judges.

     W.Kendall, with whom Law Office of W.Kendall was on brief,
for appellant.
     Nicole M. O'Connor, Assistant Corporation Counsel, with whom
Eugene L. O'Flaherty, Corporation Counsel, and City of Boston Law
Department were on brief, for appellees.

                        December 29, 2015
          STAHL, Circuit Judge.       Jeannette Buntin's late father,

Oswald Hixon, was formerly employed as a mechanic by the City of

Boston ("City").       Buntin, proceeding as the administratrix of

Hixon's estate, brought suit alleging that the City and Hixon's

supervisors,   James    McGonagle   and   Scott   Alther,   discriminated

against Hixon on the basis of his race and retaliated against him

by terminating his employment.1       Concluding that Buntin had not

pled facts sufficient to support one claim and had failed to timely

exhaust the administrative prerequisites necessary to bring suit

on another claim, the district court dismissed Buntin's complaint.

After careful review, we AFFIRM in part and REVERSE in part.

                        I. Facts and Background

          We set forth the facts as alleged in Buntin's complaint.

Hixon, who is black, was hired by the City in 2002 to work as a

mechanic at the City's public works facility.           At all relevant

times, Hixon's immediate supervisors were Alther and McGonagle,

both of whom are white.     In 2007, Hixon failed a random drug and

alcohol test and was put on probation and required to undergo

counselling.   Hixon protested his selection for the test, which he

suggested was made on the basis of race.

          Roughly four years later, on Friday, February 4, 2011,

Alther and McGonagle issued Hixon a written warning for bringing

          1 At points, we refer to the City, Alther, and McGonagle
collectively as the "Defendants."

                                     - 2 -
his personal vehicle into a City garage for repairs in violation

of a City policy.   Hixon protested the warning "vociferously" and

pointed out to Alther and McGonagle that white employees had

violated the same policy (and other City policies in place at the

time) without consequence.

          The following Monday, February 7, 2011, Hixon returned

to work and was informed that he had been suspended.             Then, on

February 10, Hixon was notified that he had been terminated based

on a purported violation of the City's drug and alcohol policy, an

explanation that the complaint alleges was both untrue and merely

a pretext for unlawful discrimination and retaliation.2

          In   January    2013,   Hixon     filed   an    application   for

unemployment   benefits    with   the     Massachusetts    Department    of

Unemployment Assistance ("DUA").     Alther and McGonagle appeared at

a series of ensuing hearings and allegedly testified falsely that

Hixon had been under the influence of controlled substances at

work and had refused to submit to a drug and alcohol test.3             Soon

          2 The complaint contains a number of allegations relating
to Hixon's membership in a union of City employees and the union's
failure to pursue grievances that he filed relating to the 2007
and 2011 incidents. Because Hixon did not bring suit against the
union, we view these allegations as relevant only to provide
context to Hixon's claims against the Defendants.

          3  Although not in the record before us, Buntin
represented at oral argument that Hixon was vindicated in an appeal
of the DUA proceedings before the Boston Municipal Court, which
awarded him benefits and found that he had not been under the
influence while at work.

                                    - 3 -
thereafter, Hixon applied for reinstatement with the City, but was

not offered a job.

          Thereafter, on December 13, 2013, Hixon filed a charge

with the Massachusetts Commission Against Discrimination ("MCAD"),

which dismissed his charge as untimely.4      Hixon passed away in

2014, and Buntin was appointed as the administratrix of his estate.

          Buntin brought this lawsuit on behalf of Hixon's estate

on February 6, 2015 in Massachusetts Superior Court, asserting a

total of seventeen claims against the Defendants under both state

and federal law.     While the complaint is confusing at times,

Buntin's federal claims appear to arise under 42 U.S.C. §§ 1981

("Section 1981") and 1983 ("Section 1983").     As we read it, the

Section 1981 claim alleges that the Defendants discriminatorily

terminated Hixon on the basis of race and, separately, retaliated

against him by suspending him and terminating his employment for

protesting his discriminatory treatment.5   The Section 1983 claim

          4 Later, on January 11, 2014, Hixon filed a second MCAD
charge premised on the allegedly untrue testimony of Alther and
McGonagle at the January 2013 DUA hearings. This charge too was
dismissed as untimely.

          5  In addition, one could perhaps tease out from the
complaint a Section 1981 claim premised on the Defendants' creation
of a hostile work environment, but we find any such claim to be
both inadequately pled and entirely undeveloped on appeal. See,
e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010)
(noting that a hostile work environment claim requires the
plaintiff to allege that the harassment endured was "severe or
pervasive enough to alter the terms and conditions of employment
and create a hostile or abusive working environment").

                                 - 4 -
appears to be premised on the same allegations of discrimination

and retaliation, as well as the City's failure to provide Hixon

with   a   "name-clearing   hearing"   after    Alther   and    McGonagle's

testimony at the 2013 DUA hearings impugned his reputation.             The

Defendants promptly removed the suit to the district court and

then moved to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6).

            In ruling on the motion to dismiss, the district court

considered only the federal claims.       Buntin v. City of Boston, No.

15-10556-RGS, 2015 U.S. Dist. LEXIS 60561 (D. Mass. May 8, 2015).

The district court concluded that the Section 1981 claim must be

dismissed because Buntin failed to exhaust her administrative

remedies by filing a timely charge of discrimination with the MCAD

before bringing suit.       Id. at *10.   With respect to the Section

1983 claim, the district court concluded that it too must be

dismissed because Buntin failed to plead facts sufficient to

support the claim.    Id. at *10-11.

                             II. Discussion

            We review the district court's dismissal of a complaint

for failure to state a claim de novo.          Cardigan Mountain Sch. v.

N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015).          In doing so, we

assume the truth of Buntin's factual allegations and draw all

reasonable inferences in her favor.         Id. at 87.         To survive a

motion to dismiss, the complaint must contain sufficient factual

                                    - 5 -
matter, accepted as true, to state a claim to relief that is

"plausible on its face."    Id. at 84 (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)).     We are not wedded to the district

court's reasoning; rather, we may affirm the dismissal of a claim

on any basis made evident by the record.   Rocket Learning, Inc. v.

Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013).

     A.   Section 1981

          Section 1981 provides, in relevant part, that "[a]ll

persons within the jurisdiction of the United States shall have

the same right . . . to make and enforce contracts . . . and to

the full and equal benefit of all laws and proceedings . . . as is

enjoyed by white citizens . . . ."   42 U.S.C. § 1981(a).   Buntin's

complaint alleges that the Defendants violated Section 1981 by

suspending Hixon on February 7, 2011, and terminating him on

February 10, 2011, both on account of his race and as retaliation

for his having complained that his treatment on February 4, 2011

was discriminatory.   As we have said, the district court dismissed

this claim solely on the grounds that Hixon failed to file a charge

of discrimination with the MCAD in a timely manner prior to

bringing suit.

          In doing so, however, the district court appears to have

conflated the administrative exhaustion requirements imposed by

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., with Section 1981, which has no such exhaustion requirement.

                                 - 6 -
Compare Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 41

(1st Cir. 2013) (noting that a Title VII plaintiff must file a

charge of discrimination with the MCAD within 300 days of the

alleged unlawful act prior to bringing suit) (citing 42 U.S.C.

§ 2000e-5(e)(1)), with Fane v. Locke Reynolds, LLP, 480 F.3d 534,

539 (7th Cir. 2007) (observing that Section 1981 does not require

administrative exhaustion).   Thus, the district court erred when

it imputed an administrative exhaustion requirement to Section

1981 and dismissed Buntin's claim for failure to comply with that

requirement.

          To the Defendants' credit, they do not argue that the

district court's dismissal should be affirmed on the basis of

administrative exhaustion. Rather, they urge that we affirm either

because the Section 1981 claim was not brought within its statute

of limitations, or because the claim was premised merely on

conclusory allegations.   We reject both arguments.

          As an initial matter, we find that Buntin's Section 1981

claim was brought within the applicable four-year statute of

limitations.   Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,

382 (2004).    Hixon was issued a written warning on February 4,

2011 for bringing his personal vehicle into a City garage for

repairs, discipline that he protested on grounds that it was

applied to him in a discriminatory manner.      It was not until

February 7, 2011, however, that Hixon returned to work and learned

                                 - 7 -
that he had been suspended, and it was not until February 10, 2011

that he was fired.     These dates are important because Buntin filed

her lawsuit almost exactly four years later on February 6, 2015.

            The Defendants insist that the statute of limitations

began to run on February 4, 2011, when Hixon received a written

warning.    But, claims for discrimination and retaliation accrue

when the alleged unlawful act "has a crystallized and tangible

effect on the employee and the employee has notice of both the act

and its invidious etiology."        Shervin v. Partners Healthcare Sys.,

Inc., 804 F.3d 23, 33 (1st Cir. 2015).         Here, Hixon did not learn

of his suspension and termination, the alleged unlawful acts, until

February 7 and 10, respectively.           Therefore, Buntin's lawsuit,

launched just as time was about to expire on February 6, 2015,

beat the statute of limitations buzzer (albeit just barely).

            The Defendants next argue that Buntin's complaint should

be dismissed because it relies solely on conclusory allegations.

We disagree.     Buntin's complaint sets forth, in fairly significant

detail,    the   specific   facts   and   circumstances   surrounding   the

events of February 4 through 10, 2011, during which time Hixon was

allegedly disciplined in an unlawfully discriminatory manner, then

suspended and terminated discriminatorily and in retaliation for

having protested his disparate treatment.          These allegations are

"specific and factual," and they plausibly suggest that Buntin is

entitled to relief on a Section 1981 claim for discriminatory

                                       - 8 -
termination and retaliation.    Cardigan Mountain Sch., 787 F.3d at

84, 87.

          In sum, because the district court erred by imposing an

administrative   exhaustion   requirement    where       none   exists,   and

because we reject the alternative bases for dismissal proffered by

the Defendants, we REVERSE the district court's dismissal of

Buntin's Section 1981 claim.

     B.   Section 1983

          Section   1983   provides    a   cause    of    action   for    the

"deprivation of any rights, privileges, or immunities secured by

the Constitution and laws" by any person acting under color of

state law.   42 U.S.C. § 1983.        Buntin's Section 1983 claim is

subject to a three-year statute of limitations.                 See Poy v.

Boutselis, 352 F.3d 479, 483 (1st Cir. 2003) (citing Mass. Gen.

Laws ch. 260, § 2A and explaining that Section 1983 "borrows" state

statutes of limitations for personal injury claims).

          As we have said, Buntin's complaint is unclear at points.

Nevertheless, we discern two possible bases for the Section 1983

claim: (1) Hixon's suspension and termination; and (2) the City's

failure to give Hixon a "name-clearing hearing" after Alther and

McGonagle impugned his character by allegedly testifying falsely

at Hixon's DUA hearings in January 2013.           We conclude, however,

that under either theory, dismissal is required.

                                  - 9 -
           To the extent that the Section 1983 claim is premised on

Hixon's alleged unlawful suspension and termination, any such

claim was indisputably brought more than three years after it

accrued.     To   reiterate     the    point,       Hixon's   suspension    and

termination took place in February 2011, and Buntin's complaint

was filed some four years later.

           On the other hand, a Section 1983 claim premised on the

January 2013 testimony of Alther and McGonagle would have been

brought within the three-year statute of limitations.                  However,

any such claim would fail on its merits.            "[W]here a public-sector

employer   creates     and    disseminates      a    false    and    defamatory

impression about an employee in connection with the employee's

discharge. . . . the Constitution's due process protections require

the employer to provide the employee with an opportunity to dispute

the defamatory allegations." Wojcik v. Mass. State Lottery Comm'n,

300 F.3d 92, 103 (1st Cir. 2002) (citations omitted).                Indeed, the

"failure to provide an adequate name-clearing forum is actionable

under [Section 1983]."       Id.; see also Burton v. Town of Littleton,

426 F.3d 9, 14-15 (1st Cir. 2005).           Nevertheless, a Section 1983

claim premised on the failure to afford a name-clearing hearing

requires that the employee satisfy five elements: (1) the alleged

defamatory statement must seriously damage the employee's standing

and association in the community; (2) the employee must dispute

the   statement   as   false;    (3)   the    statement       must   have   been

                                       - 10 -
intentionally publicized by the government; (4) the stigmatizing

statement must have been made in conjunction with an alteration of

the employee's legal status, such as the termination of his

employment; and (5) the government must have failed to comply with

the employee's request for a name-clearing hearing.       Wojcik, 300

F.3d at 103 (citations omitted).

           As we must, we assume the truth of Buntin's factual

allegations and we draw all reasonable inferences in her favor.

Cardigan Mountain Sch., 787 F.3d at 87.     Yet, even after doing so,

the complaint fails to allege any facts whatsoever establishing

the third, fourth, and fifth elements of a Section 1983 claim

premised on the denial of a name-clearing hearing.      As an initial

matter, there is no allegation that the City publicized the

defamatory statements beyond the DUA hearings at which they were

made.    What is more, the complaint itself establishes that the

alleged defamatory statements were not made in conjunction with an

alteration in Hixon's employment status.      Rather, they were made

some two years after his termination at a hearing regarding Hixon's

entitlement to unemployment benefits.       Perhaps most importantly,

the complaint does not suggest that the City denied Hixon a name-

clearing hearing, or that Hixon even requested one in the first

place.

                                   - 11 -
          Thus, whether premised on Hixon's 2011 termination or on

the testimony of Alther and McGonagle at the 2013 DUA hearings,

Buntin's Section 1983 claim was properly dismissed.

                         III. Conclusion

          For the reasons we have described, dismissal of the

Section 1983 claim is AFFIRMED, dismissal of the Section 1981 claim

is REVERSED, and the case is REMANDED to the district court for

further proceedings consistent with this opinion.6 Costs are taxed

in favor of the plaintiff-appellant Jeannette Buntin.

          6 Buntin's complaint and brief make passing reference to
Title VII, which prompted the City in its brief to dispute the
viability of any potential Title VII claim. Although it is far
from clear that Buntin is in fact pursuing a Title VII claim, we
note that any such claim is foreclosed based on Hixon's failure to
file a charge of discrimination with the MCAD within 300 days of
his suspension and termination. See Aly, 711 F.3d at 41 ("Failure
to exhaust [the] administrative process [of filing an MCAD charge]
'bars the courthouse door.'" (quoting Jorge v. Rumsfeld, 404 F.3d
556, 564 (1st Cir. 2005))).

                                - 12 -


Dismissed and Memorandum Opinion filed August 21, 2008

Dismissed
and Memorandum Opinion filed August 21, 2008.

In The

Fourteenth Court of
Appeals
____________

NO. 14-08-00356-CV
____________

RAYMOND HICKS and JANICE HICKS, Appellants

V.

STANLEY B. BROUSSARD,
Appellee

On Appeal from the County Civil
Court at Law No. 2
Harris County, Texas
Trial Court Cause No.
854718

M E M O R A N D U M  O P I N I O N

This is
an appeal from a judgment signed January 16, 2008.  The notice of appeal was
filed on April 15, 2008.  To date, our records show that appellants have
neither established indigence nor paid the $175.00 appellate filing fee.  See
Tex. R. App. P. 5 (requiring payment
of fees in civil cases unless indigent);Tex. R. App. P. 20.1
(listing
requirements for establishing indigence); see also Order Regarding Fees
Charged in Civil Cases in the Supreme Court and the Courts of Appeals and
Before the Judicial Panel on Multidistrict Litigation, Misc. Docket No. 07-9138
(Tex. Aug. 28, 2007) (listing fees in court of appeals); Tex. Gov=t Code Ann. ' 51.207 (Vernon
2005) (same).
After being given the requisite ten-days= notice that this
appeal was subject to dismissal, appellants have not paid the filing fee in accordance with
our order of July 3, 2008.  See Tex.
R. App. P. 42.3.  Accordingly, the appeal is ordered dismissed.  See
Tex. R. App. P. 42.3(c) (allowing
involuntary dismissal of case because
appellant has failed to comply with notice from clerk requiring response or
other action within specified time).

PER CURIAM

Judgment rendered and Memorandum Opinion filed August
21, 2008.
Panel consists of Justices Yates, Seymore, and Boyce.


956 F.2d 269
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Sandra M. KYNE, Plaintiff-Appellant,v.Eddie W. REDMON, an individual;  John F. Roper, anindividual;  Douglas F. Dabbs, an individual;Homer E. Chance, an individual;  RandyE. Chance, an individual, Defendants,Natchez Trace, Ltd, a Tennessee Limited Partnership;  ToucheRoss & Company, a partnership;  Woodland SquareGroup, Ltd., a Tennessee LimitedPartnership, Defendants-Appellees.
No. 92-5047.
United States Court of Appeals, Sixth Circuit.
Feb. 27, 1992.

Before KEITH and SILER, Circuit Judges, and WELLFORD, Senior Circuit Judge.

ORDER

1
The plaintiff appeals an order granting summary judgment for the defendants in this securities fraud case.   The defendant, Touche Ross & Company, now move to dismiss the appeal for lack of jurisdiction or, in the alternative, to stay the appeal pending final judgment in the district court.   The plaintiff has filed a response in opposition.

2
Under 28 U.S.C. § 1291, courts of appeals have jurisdiction only over final decisions of the district court.   A judgment is final if it leaves nothing remaining for the district court to do except execute final judgment.   Catlin v. United States, 324 U.S. 229, 233 (1945).   In the present case, the order being appealed grants summary judgment for some but not all of the defendants in the case.   Under these circumstances, Rule 54(b), Fed.R.Civ.P., permits the district court to enter final judgment upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment.   In the absence of such certification, there is no final judgment in terms of § 1291.   William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir.1978) (per curiam).   See Willhelm v. Eastern Airlines, Inc., 927 F.2d 971 (7th Cir.1991).

3
It is therefore ORDERED that the defendant's motion to dismiss is granted.   The motion for a stay is denied as moot.   This order is without prejudice to the plaintiff's right to perfect a timely appeal in the event of proper Rule 54(b) certification by the district court.


307 P.2d 468 (1957)
PUEBLO BUILDING AND CONSTRUCTION TRADES COUNCIL, J. C. Neil McCaffrey, and Ed R. Nelson, Plaintiffs in Error,
v.
HARPER CONSTRUCTION COMPANY OF COLORADO, Inc., Defendant in Error.
No. 17913.
Supreme Court of Colorado. En Banc.
January 28, 1957.
Rehearing Denied March 11, 1957.
*469 Hornbein & Hornbein, Roy O. Goldin, Denver, for plaintiffs in error.
Seavy & Seavy, Pueblo, for defendant in error.
KNAUSS, Justice.
We will refer to the parties as they appeared in the trial court where plaintiffs in error were defendants and defendant in error was plaintiff.
Plaintiff is a building contractor and defendant Building Trades Council is an unincorporated group of labor unions whose members are employed in the building and construction industry in Pueblo, Colorado. The other defendants are officers of the Council.
The trial court issued an injunction against picketing of plaintiff's construction operations. The picketing was conducted on the public street leading to plaintiff's project. From the injunctive order defendants bring the case here on writ of error.
The sole questions here presented are defendants' contentions:
(1) "* * * that the trial court erred in holding as a matter of law that defendants had no right to picket in the absence of a `labor dispute' as defined by the Labor Peace Act. C.R.S. '53, 80-5-2(7)," and
(2) That peaceful picketing for a lawful objective constitutes the exercise "of the constitutionally protected right of free speech", hence denial thereof is repugnant to the First and Fourteenth amendments of the Constitution of the United States, and Art. II, Sec. 10 of the Constitution of Colorado.
*470 The record discloses that for several years prior to the month of December, 1955 plaintiff, a building contractor, had been engaged in constructing homes in Pueblo. In its operations plaintiff used non-union labor; hence none of the defendants represented any employees of plaintiff, nor was plaintiff involved in disputes with its employees. It purchased supplies for use in its operations from firms whose employees were members of various unions. On December 7, 1955 defendants established a picket line on the public street near the entrance to plaintiff's project at a place where persons going to the project would be most likely to enter. At first there were two pickets so engaged, and later only one man was so occupied. The pickets carried signs reading as follows: "Harper Const. Co. Paying sub-standard wages Pueblo Building & Construction Trades Council." It is admitted, and the trial court found that the "picketing was peaceful with no coercion or violence of any kind." While the picket was so employed, union drivers and deliverymen for firms and corporations who furnished materials and supplies for Harper refused to cross the picket line to make deliveries. Thus plaintiff's operations were handicapped or halted due to non-delivery of materials.
One witness testified that the Pueblo Bldg. and Construction Trades Council pickets were posted so that deliveries by unionized firms would be stopped, with the ultimate purpose of having plaintiff employ only union labor on its project. Others testified that the purpose of the picketing was to acquaint the public with the fact that plaintiff was paying "sub-standard" wages, thereby "injuring" all unionized employees.
The trial court found that there was no labor dispute between plaintiff and its employees, and "That there therefore exists a very wide differential between the pay given its employees by plaintiff and the prevailing wage as established in the Pueblo area, even if the overtime difference were not so considered." * * * "The Court finds that the evidence would rather support the view advanced by most of those testifying for the defendants to the effect that their own welfare and that of their employers were both being jeopardized by the action of plaintiff in competing with their employers by paying sub-standard wages (in this instance considerably substandard) and that such type of competition threatened the whole wage structure as now prevailing and would, if continued, result in great damage both to defendants and to their employers, and could well result in lowering the standard of living for the defendants and that this constituted their dispute with the plaintiff. The court notes that the signs carried by the pickets shows this to have been the dispute between them."
The trial court based its decision exclusively on C.R.S. '53, 80-5-2(7) holding that no "labor dispute" existed between plaintiff and its employees, and that C.R.S. '53, 80-5-2(11) prohibits picketing against one not a party to the particular labor dispute. The trial judge was of the opinion that defendants' contention that the injunctive order violated their rights under the Federal and State Constitutions concerning freedom of speech was without merit.
C.R.S. '53, 80-5-6(2) (f) makes it an unfair labor practice for an employee individually or in concert with others "To hinder or prevent, by mass picketing, threats, intimidation, force or coercion of any kind, the pursuit of any lawful work or employment, or to obstruct or interfere with entrance to or egress from any place of employment, or to obstruct or interfere with free and uninterrupted use of public roads, streets, highways * * * or other way of travel or conveyance."
C.R.S. '53, 80-5-7(2) excludes from the category of "unfair labor practice" "the right of both employer and employee freely to express, declare and publish their respective views and proposals concerning any labor relationship." (Emphasis supplied.)
C.R.S. '53, 80-5-16(5) provides that no court may issue an injunction in any case involving a labor dispute to restrain "giving publicity to and obtaining or communicating *471 information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof;". (Emphasis supplied.)
The Colorado Labor Peace Act expressly reserves to employer and employee the right to freely "* * * express, declare and publish their respective views and proposals concerning any labor relationship." This is a recognition of the constitutional right of every citizen. The same act makes it an unfair labor practice "by mass picketing, threats, intimidation, force or coercion * * * to hinder or prevent * * * any lawful work or employment." In the instant case there was no mass picketing, and the express finding of the trial court, amply supported by competent evidence, was that there were no threats, intimidation, force or coercion of any kind in connection with the peaceful picketing here complained of.
The Labor Peace Act not only attempts to define a labor dispute but it also lists a number of things denominated "unfair labor practices." These may arise because of conduct on the part of management as well as on the part of employees of a particular employer, or on the part of third parties.
In American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 570, 85 L. Ed. 855, the leading case on the subject, the question presented was whether the constitutional guarantee of freedom of discussion was infringed by the common law policy of a state forbidding resort to peaceful persuasion through picketing merely because there is no immediate employer-employee dispute. It was there said:
"Such a ban of free communication is inconsistent with the guarantee of freedom of speech. That a state has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic. But not even these essential powers are unfettered by the requirements of the Bill of Rights. The scope of the Fourteenth Amendment is not confined by the notion of a particular state regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the state. A state cannot exclude working-men from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest of all engaged in the same industry has become a commonplace. American Steel Foundries v. Tri-City [Trades] Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189. The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ. Communication by such employees of the facts of a dispute, deemed by them to be relevant to their interests, can no more be barred because of concern for the economic interests against which they are seeking to enlist public opinion than could the utterance protected in Thornhill's case [Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093]. `Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.' Senn v. Tile Layers [Protective] Union, 301 U.S. 468, 478, 57 S.Ct. 857, 862, 81 L.Ed. 1229."
In Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, it was held that where the controversy is attended by peaceful picketing and by acts of violence, and the violence has been such that continuation of the picketing will operate coercively by exciting fear that violence will *472 be resumed, an injuction by a state court forbidding the picketing as well as the violence does not infringe the Fourteenth Amendment of the Federal Constitution.
Bakery & Pastry Drivers & Helpers Local, etc. v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 818, 86 L.Ed. 1178 is a case where members of a union of drivers engaged in the distribution of baked goods, in an endeavor to induce peddlers to work but six days a week and to hire an unemployed union member one day a week, peacefully picketed bakers from which the peddlers obtained their goods and the places of business of the peddlers' customers. They carried placards with the peddlers' names and a true statement of the union's grievance. It was held that a state court injunction against such picketing was an unconstitutional invasion of the right of free speech; that the right of free speech does not depend in such a case on whether or not a "labor dispute" as defined in the New York statutes, is involved. As in the instant case "The controversy in the trial court centered about the issue as to whether a labor dispute was involved within the meaning of New York statutes. The trial court found itself constrained to hold that no labor dispute was involved and seemed to be of the impression that therefore no Constitutional rights were involved. * * * The trial court refused the petitioners' request for a finding that `it was lawful for the defendants to truthfully advise the public of its cause, whether in the vicinity of the places of business of bakers who sold to the plaintiffs, or otherwise.' Likewise, it refused a request to find `that it was a constitutional right of the defendants to advise the public accurately and truthfully and without violence or breach of the peace, that defendants worked seven days a week and that the defendants were seeking to secure employment from the plaintiffs for unemployed members of the union for one day a week.'
"So far as we can ascertain from the opinions delivered by the state courts in this case, those courts were concerned only with the question whether there was involved a labor dispute within the meaning of the New York statutes and assumed that the legality of the injunction followed from a determination that such a dispute was not involved. Of course that does not follow: one need not be in a `labor dispute' as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive. * * * there are no findings and no circumstances from which we can draw the inference that the publication was attended or likely to be attended by violence, force or coercion, or conduct otherwise unlawful or oppressive; and it is not indicated that there was an actual or threatened abuse of the right to free speech through the use of excessive picketing."
As to the peaceful picketing there being considered, the court said: "We ourselves can perceive no substantive evil of such magnitude as to mark a limit to the right of free speech which the petitioners sought to exercise."
In a concurring opinion, Mr. Justice Douglas said: "Its statute (Civil Practice Act, § 876-a) as construed and applied in effect eliminates communication of ideas through peaceful picketing in connection with a labor controversy arising out of the business of a certain class of retail bakers. But the statute is not a regulation of picketing per senarrowly drawn, of general application, and regulating the use of the streets by all picketeers. In substance it merely sets apart a particular enterprise and frees it from all picketing. If the principles of the Thornhill case are to survive, I do not see how New York can be allowed to draw that line."
In Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 744, 84 L.Ed. 1093 the court said: "The dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution." In that case the court *473 recognized that picketing could be regulated, but stated: "Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion."
Aside from statutory provisions, the legality of peaceful picketing has its basic roots in constitutional guarantees of liberty and free speech. The duty to prevent encroachment upon these constitutional guarantees rests not only upon the legislature but upon the judicial branch of the government. Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; People v. Harris, 104 Colo. 386, 91 P.2d 989, 122 A.L.R. 1034; Denver Local Union No. 13, etc. v. Perry Truck Lines, 106 Colo. 25, 101 P.2d 436, 442.
In Denver Local Union No. 13, etc. v. Perry Truck Lines, supra, it was said: "Counsel for plaintiffs argue that there can be no `labor dispute' where the sole purpose of the union is to compel an employer to coerce his employees to join a labor union, because an attempt to compel an employer to sign a closed-shop contract against the will of his employees is illegal under sections 76 and 77, chapter 97, supra. We cannot say, from this record, that this was the sole purpose of the union. * * * Assuming, however, that this is the sole object of the agencies used by defendants herein to obtain a closed shop, is there any merit to that argument? This same contention was rejected in Senn v. Tile Layers Protective Union [supra], and Lauf v. E. G. Shinner & Co. [303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872], supra. It also was rejected in the well-reasoned case of American Furniture Co. v. I. B. of T. C. & H. of A. [222 Wis. 338, 268 N.W. 250, 106 A.L.R. 335], supra."
The Denver Union No. 13 case was decided prior to the enactment of the so-called Labor-Peace Act of 1943.
In Denver Local Union No. 13, etc. v. Buckingham Transp. Co., 108 Colo. 419, 118 P.2d 1088, 1091, we said:
"We recently held, in Denver [Local] Union [No. 13, etc.] v. Perry Truck Lines, 106 Colo. 25, 101 P.2d 436, that under the State Norris-La Guardia Act [29 U.S.C.A. § 101 et seq.], a labor dispute as therein defined might exist between an employer and a labor union even though there was no controversy between such employer and his own employees. Also, in that case, presaging the holding of the Supreme Court of the United States in Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, we held that peaceful picketing had its basic roots in the constitutional guaranties of liberty and freedom of speech. Under these decisions and others of the United States Supreme Court hereinafter cited, there is now no question that a state may not by its common-law or statutory policy prohibit peaceful persuasion, through peaceful picketing, notwithstanding the occasioning labor dispute is not an immediate employer-employee one."
In Carpenters & Joiners Union, etc. v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 810, 86 L.Ed. 1143, it is said: "* * * recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power to confine the sphere of communication to that directly related to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the states the power to draw this line is to write into the Constitution the notion that every instance of peaceful picketinganywhere and under any circumstancesis necessarily a phase of the controversy which provoked the picketing. Such a view of the Due Process Clause [in the Fourteenth Amendment] would compel the states to allow the disputants in a particular industrial episode to conscript neutrals *474 having no relation to either the dispute or the industry in which it arose."
In the instant case the single picket paraded on the highway adjacent to the operations of plaintiff.
In Cafeteria Employees Union, etc. v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 127, 88 L.Ed. 58 the court had before it "a prohibition as unrestricted as that which we found to transgress state power in American F. of L. v. Swing, supra." It was there said: "But, as we have heretofore decided, a state cannot exclude working men in a particular industry from putting their case to the public in a peaceful way `by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him.'"
Mr. Justice Jackson, speaking for the Court in Bakery & Pastry Drivers & Helpers Local, etc. v. Wohl, supra [315 U.S. 769, 62 S.Ct. 818], said: "* * * one need not be in a `labor dispute' as defined by state law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive."
In American Federation of Labor v. Reilly, 113 Colo. 90, 155 P.2d 145, 160 A.L.R. 873 (decided after the Labor Peace Act was adopted) we held that the Supreme Court of the United States is the final arbiter in the field of federal constitutional law and its decisions as to the meaning and scope thereof are binding upon state courts.
The cases of Denver Milk Producers v. International Brotherhood of Teamsters, etc., Union, 116 Colo. 389, 183 P.2d 529 and Amalgamated Meat Cutters, etc. v. Green, 119 Colo. 92, 200 P.2d 924, were decided under facts distinctly different from those in the instant case. In each of these cases the court determined that the union was picketing for an unlawful objective. It must be conceded in the instant case that the objective of the defendants was by peaceful means to persuade the plaintiff to adopt the prevailing wage rates paid by other employers in the area, by calling attention of the public to its dereliction in that respect. From the exhibits introduced at the trial court and the Colorado statutes it is manifest that the defendants were asking nothing from the plaintiff other than that it recognize and pay the wages approved by the municipal, state and federal governments and of the other building contractors in the area. As we said in Denver Local Union No. 13, etc. v. Perry Truck Lines, supra [106 Colo. 25, 101 P.2d 441]: "The wage scale and working conditions of plaintiffs' operations reflect themselves in all like operations. The margin of difference * * * might become an important competitive factor with others in like business, so as to force the adoption of the lower scale by those who employ members of defendant's union."
A careful consideration of People v. Harris, supra; Denver Local Union No. 13, etc. v. Perry Truck Lines, supra; Denver Local Union No. 13, etc. v. Buckingham Transp. Co., supra, and the cases from the United States Supreme Court we have cited, convince us that peaceful picketing is a form of free speech and as such protected by constitutional guaranty. To hold otherwise would be to fix a limitation on the right to express views concerning a labor relationship, and, as we think, invade the right of freedom of speech contrary to the explicit provisions of the statute under consideration. As we have pointed out the Act provides: "* * * nor shall anything in this act be so construed as unlawfully to invade the right to freedom of speech." C.R.S. '53, 80-5-21. And again, "The right of both employer and employee freely to express, declare and publish their respective views and proposals concerning any labor relationship shall not be abrogated or limited by this act, nor shall the exercise of such right constitute an unfair labor practice." (Emphasis supplied.)
This was not a grant of a right, but one expressly reserved to the people when the *475 Bill of Rights was made a part of the constitution. The Labor Peace Act recognizes this basic fundamental right.
We conclude that the trial court erred in granting the injunction under the facts as disclosed by the record. The judgment is, therefore reversed and the cause remanded with directions to vacate the order granting the injunction.


            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

                                           No. 16-2333

                                  HANK M. SMIDDY, APPELLANT,

                                                V.

                                     ROBERT L. WILKIE,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                          On Appeal from the Board of Veterans' Appeals

                                     (Decided May 28, 2020)

      Amy F. Odom and Barton F. Stichman, both of Washington, D.C., and James D. Arden,
of New York, New York, were on the brief for the appellant.

        Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; Carolyn F.
Washington, Deputy Chief Counsel; and Laura R. Braden, all of Washington, D.C., were on the
brief for the appellee.

          Before PIETSCH, GREENBERG, and MEREDITH, Judges.

          PIETSCH, Judge: The appellant, Hank M. Smiddy, appeals through counsel a March 17,
2016, Board of Veterans' Appeals (Board) decision that denied a disability rating higher than 10%,
on an extraschedular basis, for status post left inguinal hernia repair with ilioinguinal nerve
entrapment (inguinal hernia repair residuals). Record (R.) at 2-19. This appeal is timely, and the
Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
This case concerns the legal analysis that the Board conducts after receiving an extraschedular
decision from the director of the Compensation Service (Director) under 38 C.F.R. § 3.321(b)(1)
(2015).
          On January 19, 2018, the Court submitted this matter to a panel for consideration. On
March 12, 2018, the Court received the parties' supplemental briefs. The following month, the
appellant filed a motion for oral argument, which the Secretary opposed. The Court concludes
that oral argument will not materially assist its deliberations. See O'Brien v. Wilkie, 30 Vet.App.
21, 24 (2018). The appellant's motion is therefore denied.
       For the reasons that follow, the Court will vacate the Board's March 17, 2016, decision and
will remand the matter for further proceedings consistent with this decision.

                                      I. BACKGROUND
       The appellant served in the U.S. Army from October 1991 to September 1995. R. at
3084-86, 1439. During service, he underwent a left inguinal hernia repair, which resulted in nerve
entrapment. R. at 1448, 1725. In a March 2004 rating decision, the Nashville, Tennessee, VA
regional office (RO) awarded service connection for inguinal hernia repair residuals and assigned
a 10% disability rating effective June 1998. R. at 2958-61.
       In January 2005, the appellant filed an increased-rating claim for this disability. R. at
2953-54. In a July 13, 2005, rating decision, the RO denied entitlement to a higher rating, noting
that the appellant's 10% rating was the maximum schedular evaluation possible under the
applicable diagnostic code (DC). R. at 2786-93 (assigning a hyphenated disability rating under
38 C.F.R. §§ 4.114, DC 7338 (inguinal hernia) (2006), 4.124a, DC 8730 (neuralgia of ilio-inguinal
nerve) (2006)). The RO also declined to refer the case for extraschedular consideration. Id. The
appellant submitted a Notice of Disagreement the following month, R. at 2776, and VA issued a
Statement of the Case in May 2006 that continued the 10% schedular disability rating and denied
extraschedular referral, R. at 2743-60. The appellant perfected his appeal in June 2006. R. at
2729-30.
       In August 2010, the Board remanded the appellant's claim for a new VA examination "to
address the current nature and etiology of [the appellant's] chronic left inguinal hernia repair
residuals, left ilioinguinal nerve entrapment, and erectile dysfunction." R. at 2635. The appellant
underwent the VA examination in January 2011, R. at 5, but the Board again remanded the case
in August 2012, finding that the January 2011 VA examination had not complied with the Board's
August 2010 remand instructions, R. at 2558-59.
       The appellant underwent a new VA examination in September 2012. R. at 2489-518. The
examiner did not detect a hernia on physical examination and found no conditions calling for a
supporting belt. R. at 2491. The examiner diagnosed the appellant with moderate sensory
neuropathy of the left ilioinguinal nerve. R. at 2510. He noted that the hernia affected the
appellant's ability to work, and that the pain from the corresponding peripheral nerve condition
was "worsened by walking, squatting, and lifting at work," such that it "caused him to work longer

                                                2
hours . . . since the pain [] slow[ed] him down." R. at 2493, 2509-10. The examiner also found
that the appellant could not "wear tight fitting clothing since the touch of the clothing [] cause[d]
pain in [his] thigh." R. at 2510. The examiner further found that the appellant had a voiding
dysfunction, and that the etiology of the voiding dysfunction was the inguinal hernia repair
surgery. R. at 2511.
       In July 2013, the Board requested that a Veterans Health Administration (VHA) medical
expert opine on two questions: (1) What current disabilities were associated with the appellant's
left inguinal hernia repair residuals with ilioinguinal nerve entrapment? and (2) whether the
appellant's voiding dysfunction with urinary leakage was a symptom of his service-connected
disability? R. at 2149. The following month, a VHA medical expert opined that the appellant's
chronic left testicular discomfort and left thigh numbness should not interfere with employment,
and that it was "highly unlikely" that his urological complaints were associated with his
ilioinguinal nerve entrapment, given that the ilioinguinal nerve "is a peripheral nerve and not
associated with voiding function." R. at 2116-17.
       In an April 2014 decision, the Board denied the appellant's claim for a schedular rating
greater than 10% for inguinal hernia repair residuals. R. at 1969-73. However, the Board
determined that "the unusual or exceptional disability picture associated with the [appellant's] left
inguinal nerve entrapment render[ed] the schedular criteria under 38 C.F.R. §§ 4.123, 4.124a
Diagnostic Code 8530, 86[3]0 inadequate," and that "[t]he [appellant's] clinical records and written
statements on appeal reflect significant impairment of his occupational and social activities not
represented by the current 10 percent evaluation." R. at 1974. The Board concluded that the
appellant's inguinal hernia repair residuals presented "an exceptional disability picture" and,
accordingly, referred the claim to the Director for extraschedular consideration. Id.
       In August 2015, the appellant submitted to VA a request for a total disability rating based
on individual unemployability (TDIU). R. at 1318-19. He identified the conditions preventing a
gainful occupation as his knees, ankles, arthritis, and kidney stones. R. at 1318; see R. at 1316-17.
       In October 2015, the Director issued a decision denying an extraschedular rating for the
appellant's inguinal hernia repair residuals. R. at 1269-70. The Director stated:
               [A]part from the objective evidence confirming the 10% evaluation
               currently entitled to and other subjective evidence[,] such as the [appellant]
               indicating that his scar has caused him discomfort so that he can't wear tight
               fitting clothing, has affected his sexual activity, and it's slowed him down

                                                 3
               at work[,] no further evidence of an unusual disability picture such as
               frequent hospitalizations or of marked interference with employment have
               been presented.

R. at 1269. The Director also reasoned that the objective medical evidence of record suggested
that the 10% schedular evaluation was adequate, that the appellant had continued to work full-
time, and that the various medical opinions had found that the appellant's disability should not
prevent him from maintaining gainful employment. Id. The Director also noted that the appellant
was already service connected for erectile dysfunction. Id.
       In its March 2016 decision we consider here on appeal, the Board determined that an
extraschedular rating for inguinal hernia repair residuals was not warranted. R. at 2-19. The Board
found that the evidence of record was against a finding that the appellant's inguinal hernia repair
residuals presented "such an exceptional or unusual disability picture that the available schedular
evaluations are inadequate." R. at 17-18 (citing Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd
sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009)). Specifically, the Board found that
the manifestations of the appellant's disability included "pain and discomfort at the left testicle and
thigh, in addition to left thigh numbness," and that "[t]hese manifestations [were] fully
contemplated by the rating criteria for neuralgia of the ilioinguinal nerve." R. at 18. Additionally,
the Board determined that, although the appellant "assert[ed] his disability has worsened due to
urinary symptomatology, competent medical evidence of record indicates that [his] voiding
dysfunction with urinary leakage is not a symptom of his left inguinal hernia repair residuals."
R. at 8. The Board also found "no evidence of unusual factors such as frequent hospitalizations or
marked interference with employment stemming from the [appellant's] inguinal hernia repair
residuals." R. at 18. In reaching this conclusion, the Board stated that it had no reason to doubt
the appellant's reports of slowed work performance due to pain from his inguinal hernia repair
residuals, but that "slower performance alone does not comprise [sic] marked interference with
employment" and that in his TDIU request he "did not attribute his inability to work to his hernia
repair residuals." R. at 17. The Board thus concluded that an extraschedular rating was not
warranted. R. at 17-18. This appeal followed.

                                                  4
                               II. THE PARTIES' ARGUMENTS
       The appellant argues that, in its 2016 decision, the Board provided an inadequate statement
of reasons or bases because the Board failed to explain why it revisited and reversed its 2014
referral findings. Appellant's Brief (Br.) at 9-17; Reply Br. at 1-5. He also asserts that, even if the
Board were permitted to reverse its prior factual findings, it nonetheless failed to adequately
explain its conclusion denying an extraschedular rating. Appellant's Br. at 18-25; Reply Br. at 6-8.
The appellant also contends that the Board erred when it conflated its "marked interference with
employment" analysis with a "total disability" analysis, and offered no legal basis or explanation
for concluding that slower work performance alone does not constitute marked interference with
employment. Appellant's Br. at 23-24; Reply Br. at 7-8. He also argues that the Board failed to
adequately explain its determination that his genitourinary symptoms were not related to his
inguinal hernia repair residuals. Appellant's Br. at 25-27; Reply Br. at 9-11. Finally, the appellant
asserts that remand is required because it is not possible to determine whether the outcome of this
case would have been different if the Board had corrected the errors and deficiencies in its decision.
Reply Br. at 5.
       The Secretary avers that the Board provided adequate reasons or bases for denying an
extraschedular rating and was not obligated to more specifically address its provisional factual
findings supporting the 2014 referral. Secretary's Br. at 9-14. He also argues that the appellant
was not prejudiced by any error in the Board's extraschedular analysis. Id. at 14-20. Finally, he
contends that the Board did not err in finding that the appellant's genitourinary symptoms were not
related to his inguinal hernia repair residuals. Id. at 20-22.
       In February 2018, the Court directed the parties to file supplemental memoranda discussing
several aspects of the Thun framework for establishing entitlement to extraschedular consideration,
particularly the role of the Board when it receives a post-referral decision from the Director. In
response, the appellant asserted that, after the Director makes a decision, the Board should review
the entirety of that decision to "ultimately determine" whether it accords justice to award an
extraschedular rating. Appellant's Supplemental Memorandum (Supp. Memo.) at 3. The appellant
further argued that the Board's factual findings regarding Thun steps 1 and 2 should not differ
between the referral stage and the adjudication stage and, if they do, the Board must explain why.
Id. at 6-8. In that regard, he asserts that the Board's ordinary reasons-or-bases requirement is
heightened when its adjudication decision is different from its referral decision. Id. at 8-10.

                                                  5
       For his part, the Secretary argued that, if after receiving the Director's decision the Board
determines on de novo review that Thun steps 1 and 2 are not met, the Board need not conduct any
analysis under Thun step 3. Secretary's Supp. Memo. at 1-3. If the Board conducts an analysis
under step 3, the Secretary continued, the Board's discussion should focus on whether an
extraschedular rating would be commensurate with the average, rather than actual, impairment of
earning capacity due exclusively to the disability. Id. at 3-4. Next, the Secretary argued, as the
appellant did, that the Board's de novo review of steps 1 and 2 "should not differ depending upon
whether the Board is considering extraschedular referral or adjudication." Id. at 5. Yet the
Secretary asserted that, after the Board receives the Director's decision, the Board should not be
subject to a heightened reasons-or-bases standard when it considers whether an extraschedular
rating is warranted. Id. at 6-7.

                                         III. ANALYSIS
       By way of background, on April 16, 2018, the Court submitted Morgan v. Wilkie to the full
Court to address the viability of the extraschedular framework as set out in Thun. 31 Vet.App. 162
(2019). On May 16, 2019, the full Court returned Morgan to a panel of Judges, which issued its
decision without addressing the extraschedular framework, finding the Board's decision unclear as
to whether extraschedular referral had been raised. Id. at 166. The day Morgan issued, the Court
submitted Long v. Wilkie, U.S. Vet.App. No. 16-1537 (oral argument held Aug. 28, 2019), to the
full Court to address the viability of the extraschedular framework. While the Court is considering
the continued viability of the extraschedular framework in Long, the panel determines that the
reasoning and holding of Ray v. Wilkie largely control this appeal and that the panel may proceed
to consider this appeal because the decision is limited to post-referral extraschedular
determinations based on the 2016 regulatory framework. 31 Vet.App. 58 (2019).
                     A. Extraschedular Evaluations and Standard of Review
       VA's schedule of disability ratings is based on the average impairment of earning capacity
in civil occupations from specific injuries or combinations of injuries. 38 U.S.C. § 1155; 38 C.F.R.
§ 3.321(a) (2015). However, "[t]o accord justice[] . . . to the exceptional case where the schedular
evaluations are found to be inadequate, . . . the Director" is authorized to approve an extraschedular
rating "commensurate with the average earning capacity impairment due exclusively to the service

                                                  6
connected disability or disabilities." 38 C.F.R. § 3.321(b)(1).1 The "governing norm" in these
cases is whether they present "such an exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent periods of hospitalization so as to
render impractical the application of the regular schedular standards." Id.
        In Thun, the Court set forth the "three-step inquiry" for determining whether a claimant is
entitled to an extraschedular rating under § 3.321(b)(1). 22 Vet.App. at 115-16; see Anderson v.
Shinseki, 22 Vet.App. 423, 427 (2009) (clarifying that the "steps" described in Thun "are, in fact,
elements that must be established before an extraschedular rating can be awarded"). First, either
the RO or the Board must find "that 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. This step 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." Id. If "the schedular evaluation does not
contemplate the claimant's level of disability and symptomatology and is found inadequate," the
second step of Thun provides that "the RO or Board must determine whether the claimant's
exceptional disability picture exhibits other related factors such as those provided by the regulation
as 'governing norms,'" such as "marked interference with employment" and "frequent periods of
hospitalization." Id. (citing 38 C.F.R. § 3.321(b)(1) (2007)). Finally, if the criteria under the first
two steps are satisfied, "then the case must be referred to the [Director] for completion of the third
step—a determination of whether, to accord justice, the claimant's disability picture requires the
assignment of an extraschedular rating." Id.
        The Board's extraschedular referral decision, as well as the ultimate determination of
whether an extraschedular rating is appropriate, are factual determinations that the Court reviews
under the "clearly erroneous" standard of review. Ray, 31 Vet.App. at 65 (stating that if the
"Board's referral[s] [for extraschedular consideration] denials are factual decisions . . . [w]e can
think of no principled reasons why . . . a decision to refer a claim [for extraschedular consideration]
is not [a factual decision]" (emphasis added)); Pederson v. McDonald, 27 Vet.App. 276, 286
(2015) (en banc) (noting that the Board's decision not to refer a claim for extraschedular

1
  Effective January 8, 2018, VA amended § 3.321(b)(1) to prohibit extraschedular consideration based on the
combined effects of more than one service-connected disability. See Department of Veterans Affairs, Extra-Schedular
Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830 (Dec. 8, 2017); see also Thurlow v. Wilkie, 30 Vet.App.
231, 238-40 (2018).

                                                         7
consideration is based on several factual determinations); Thun, 22 Vet.App. at 115. As with any
finding on a material issue of fact and law presented on the record, the Board must support its
determination with an adequate statement of reasons or bases that enables the claimant to
understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C.
§ 7104(d)(1); Thun, 22 Vet.App. at 115; Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze
the credibility and probative value of evidence, account for evidence it finds persuasive or
unpersuasive, and provide reasons for rejecting material evidence favorable to the claimant.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).
                                       B. Post-Referral Analysis
                                                 1. Law
           In Anderson, a decision review officer (DRO) referred the case to the Director to determine
whether an extraschedular rating was warranted. The Director denied an extraschedular rating and
the Board agreed with the Director's denial. 22 Vet.App. at 424-25. On appeal, the Court rejected
the appellant's argument elevating the analysis under each Thun element into a separate final
decision that was binding on the Director and the Board. Id. at 427. Instead, the Court held that
the Board was permitted to review the DRO's and Director's findings, and that the Board "has
jurisdiction to review whether the decision not to award an extraschedular rating was appropriate
under all three elements set forth in Thun." Id. at 428. The Court also clarified that "the [referral]
analysis performed by the RO or Board is done for the limited purpose of determining whether
referral of the matter for extraschedular consideration is warranted[,] [but] [t]he actual review of
the matter and approval of an extraschedular rating is done for the first time by the Director . . . ."
Id. (citations omitted).
           There is no dispute over Anderson's holding that the extraschedular referral determinations
are not binding on the actual extraschedular adjudication; however, the present case differs in one
key respect: Here, the Board was reviewing not the DRO's referral findings, but its own referral
findings. And, although Anderson distinguished between the "limited purpose" of the referral
analysis and the "actual review of the matter and approval of an extraschedular rating" performed
for the first time by the Director, the Court did not clarify whether the Board's post-referral analysis
of its own referral findings necessarily required a re-evaluation of Thun elements 1 and 2.

                                                    8
Accordingly, this case presents the following question: How does the Board's review of Thun
elements 1 and 2 at the adjudication stage differ from its review at the referral stage?
       In Wages v. McDonald, the Court held that the Director's opinion was not evidence that the
Board could use in its post-referral decision. 27 Vet.App. 233, 239 (2015) (per curiam). Rather,
the Director's decision was a decision adopted by the RO and reviewed by the Board de novo. Id.
Under Thun, following referral, the Director and the Board must determine "whether, to accord
justice, the claimant's disability picture requires the assignment of an extraschedular rating."
22 Vet.App. at 115. Although this Court has held that extraschedular determinations are capable
of judicial review, Kuppamala v. McDonald, 27 Vet.App. 447, 457 (2015), neither § 3.321 nor
Thun provides any concrete test or guidance for the Court to apply when reviewing the Board's
extraschedular decision, aside from the first two elements described at the referral stage. For
guidance as to what the Board must do in the absence of any other specified test at the post-referral
stage, the Court turns to its recent precedent in Ray, as well as the Board's reasons-and-bases
requirement under 38 U.S.C. § 7104(d)(1).
       Although Ray addressed the extraschedular referral process in the TDIU context under
38 C.F.R. § 4.16, Ray nonetheless offers compelling logic that also applies in the increased-rating
context under § 3.321. See 31 Vet.App. at 66-67; cf. King v. Shulkin, 29 Vet.App. 174, 178 (2017)
("The goal of the entire rating process is to appropriately compensate veterans. The schedular and
extraschedular analyses are just different means of doing so."); Norris v. West, 12 Vet.App. 413,
420-21 (1999) ("A TDIU rating is not a basis for an award of service connection. Rather, it is
merely an alternate way to obtain a total disability rating without being rated 100% disabled under
the Rating Schedule."). But see Kellar v. Brown, 6 Vet.App. 157, 162 (1994) (noting that
evaluations regarding employability in § 4.16 and interference with employment contained in
§ 3.321(b)(1) are different metrics); Stanton v. Brown, 5 Vet.App. 563, 564-70 (1993) (holding
that the issue of extraschedular rating is separate from the issue of TDIU rating).
       In Ray, the Court acknowledged that "the decisions to refer and to award a[n extraschedular
TDIU] rating are fundamentally different" and that a referral decision does not require the Board
to award an extraschedular rating. 31 Vet.App. at 65. The Court explained that to hold otherwise
would make the Director "little more than a rubberstamp." Id. at 64. However, the Court also held
that, because the en banc Court in Pederson held that the Board's referral denials are factual
decisions, it would be logically inconsistent to hold that a decision to refer a claim is not a factual

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decision. Id. at 65. Rather, the Court held that "the initial extraschedular referral decision under
§ 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that
a veteran is unemployable by reason of his or her service-connected disabilities." Id. at 66. And,
whether a "preponderance of the evidence nevertheless shows that a veteran is unemployable by
reason of his or her service-connected disabilities" is the question to answer in the adjudication
stage of assigning an extraschedular disability rating. Id.
       The Court also held in Ray that "the Board must ensure that it adequately explains its
reasoning when a factual finding made at the referral stage comes out differently at the review
stage." Id. at 66-67. The Court suggested that the certitude or equivocality of the Board's language
in a referral decision could affect the amount of explanation required where there is deviation at
the award stage. Id. at 67 ("For example, where the Board finds referral appropriate because 'it is
beyond dispute' that a veteran was unemployable because of his service-connected disabilities,
more explanation might be needed for a contrary finding than where the Board's referral finding is
more equivocal."). In Ray, the Court remanded the case to the Board for an adequate statement of
reasons or bases for "its different factual determinations at the referral and review stages." Id.
       In the instant case, the Court extends Ray's reasoning and holding in the context of
extraschedular TDIU under § 4.16(b) to the context of extraschedular rating under § 3.321(b). Cf.
Rice v. Shinseki, 22 Vet.App. 447, 453 (2009) (per curiam) ("Because Mr. Rice was challenging
the initial disability rating assigned for the disability upon which he based his assertion of
unemployability . . . the determination of whether he is entitled to TDIU . . . is part and parcel of
the determination of the initial rating for that disability."). The initial extraschedular referral
decision under § 3.321(b) addresses whether there is sufficient evidence to substantiate a
reasonable possibility that "application of the regular schedular standards" is impractical because
the disability is "exceptional or unusual . . . with such related factors as marked interference with
employment or frequent periods of hospitalization." 38 C.F.R. § 3.321(b) (2015); see Thun,
22 Vet.App. at 115-16. Accordingly, the Court holds that, in the extraschedular rating context, the
Board's reasons-or-bases requirement obligates it to "explain[] its reasoning when a factual finding
made at the referral stage comes out differently at the review stage." Ray, 31 Vet.App. at 67.
                              2. Application to the Facts of this Case
       Here, the language of the Board's 2014 referral decision was not equivocal. The Board
found that the

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         unusual or exceptional disability picture associated with the [appellant's] left inguinal nerve
         entrapment renders the schedular criteria under 38 C.F.R. §§ 4.123, 4124a, Diagnostic
         Code[s] 8530, 86[3]0[,] inadequate in the instant appeal. The [appellant's] clinical records
         and written statements on appeal reflect significant impairment of his occupational and
         social activities not represented by the current 10 percent evaluation. Accordingly, the
         Board concludes that [his] left inguinal hernia repair residuals with ilioinguinal nerve
         entrapment present an exceptional disability picture which warrants referral to the Under
         Secretary for Benefits or the Director of the Compensation and Pension Service for extra-
         schedular consideration.

R. at 1974. And little was added to the record following the 2014 referral.2 The Director's opinion
does not count as evidence. See Wages, 27 Vet.App. at 239. The appellant's 2015 TDIU
application, although new, is not necessarily determinative of his increased-rating claim. See
Kellar, 6 Vet.App. at 162 (holding that, because "the effect of a service-connected disability
appears to be measured differently for purposes of extraschedular consideration" and "for purposes
of a TDIU" request, the appellant's claim for extraschedular consideration of his service-connected
condition "is not inextricably intertwined with the TDIU [matter] which has been referred to" the
agency of original jurisdiction). Thus, it is unclear why, on mostly the same facts, the Board
reached opposite conclusions. See Appellant's Br. at 9-14. Although the Board was not bound by
its 2014 referral decision, it did not explain why it had reached an opposite conclusion in its 2016
decision. In the 2016 decision, the Board did not discuss the 2014 referral findings, but simply
noted the referral. To enable the appellant to understand the precise basis for its decision, the
Board must explain why it reached a different result. Here, the appellant believes that, by the
referral in 2014, he received a "yes" to an extraschedular rating, and then in 2016 received a "no,"
although the Board had evaluated the same two Thun factors. Because the Board treated the 2014
and 2016 Thun determinations differently, it must explain why and how they were different. See
Allday, 7 Vet.App. at 527. Its failure to do so frustrates judicial review. See id.; see also 38 U.S.C.
§ 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
         To the extent the Secretary may be asserting that any Board reasons or bases deficiency in
failing to explain its conflicting referral and award determinations is nonprejudicial, the Court
cannot conclude that this error was harmless. In that regard, the Board previously acknowledged
evidence of "significant impairment of [the appellant's] occupational and social activities not

         2
           After the October 2015 Supplemental Statement of the Case issued, Social Security Administration records,
including private medical records, were placed in the appellant's file and he waived consideration by the RO. R. at 3.

                                                         11
represented by the current 10 percent evaluation" and provided no explanation in the decision on
appeal as to why that is no longer the case. The Court will not undertake that analysis in the first
instance. See Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (finding prejudice when error
"could have altered" the Board's determinations); see also Hensley v. West, 212 F.3d 1255, 1263
(Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding").
                              C. Other Reasons-or-Bases Arguments
       Given that the Court is remanding the appellant's extraschedular claim, and because the
appellant's additional reasons-or-bases arguments could result in no greater relief, the Court need
not address these arguments. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order)
("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed
errors that would result in a remedy no broader than a remand."); Best v. Principi, 15 Vet.App. 18,
20 (2001) (per curiam order) ("A narrow decision preserves for the appellant an opportunity to
argue those claimed errors before the Board at the readjudication, and, of course, before this Court
in an appeal, should the Board rule against him."). On remand, the appellant is free to submit
additional evidence and argument on the remanded matter, and the Board is required to consider
any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002)
(stating that, on remand, the Board must consider additional evidence and argument in assessing
entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). Additionally, the Court has held that "[a] remand is meant to entail a critical
examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring
the Secretary to provide for "expeditious treatment" of claims remanded by the Court).

                                        IV. CONCLUSION
       The appellant's motion for oral argument is denied. After consideration of the parties'
briefs, supplemental memoranda, and the record, the Board's March 17, 2016, decision denying a
disability rating greater than 10% on an extraschedular basis for inguinal hernia repair residuals is
VACATED, and the matter is REMANDED for further proceedings consistent with this decision.

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