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JOHNSON v. McDONALD

No. 2013-7104.

762 F.3d 1362 (2014)

Marvin O. JOHNSON, Claimant-Appellant, v. Robert A. McDONALD, Secretary of Veterans Affairs, Respondent-Appellee.

United States Court of Appeals, Federal Circuit.

August 6, 2014.

Attorney(s) appearing for the Case

Kenneth M. Carpenter , Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant.

Martin F. Hockey, Jr. , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief Stuart F. Delery , Assistant Attorney General, and Bryant G. Snee , Acting Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martie Adelman , Attorney, United States Department of Veterans Affairs, of Washington, DC.

Opinion for the court filed by Circuit Judge MOORE. Concurring opinion filed by Circuit Judge O'MALLEY.

MOORE, Circuit Judge.

Marvin O. Johnson appeals from the decision of the Court of Appeals for Veterans Claims (Veterans Court) denying his request for referral for extra-schedular consideration of his service-connected disabilities. Because the Veterans Court's interpretation of 38 C.F.R. § 3.321(b)(1), which governs referral for extra-schedular consideration, contravenes the plain meaning of the regulation, we reverse and remand.

I.

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