Single Judge Application, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011); Category Claimant's Symptoms

Excerpt from decision below: "The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of 5 reasons and bases." Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) ( citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)). Rather, the "Board must explain, in the context of the facts presented, the rating criteria used in determining the category into which a claimant's symptoms fall; it is not sufficient to simply state that a claimant's degree of impairment lies at a certain level without providing an adequate explanation." Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). Nowhere in the Board's discussion does the Board explain – in the context of the appellant's numerous symptoms – why the appellant's overall impairment is not more than "moderately severe." R. at 13. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 12-678 RONALD W. BENTZ, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Ronald W. Bentz, through counsel appeals a January 23, 2012, Board of Veterans' Appeals (Board) decision that denied an initial disability rating in excess of 20% for muscle atrophyand callosities of the left foot. Record of Proceedings (R.) at 3-14. 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). Both parties filed briefs, and the appellant filed a reply brief. Single-judgedispositionis appropriate.Frankelv.Derwinski,1Vet.App.23,25-26( 1990). Because the Board failed to provide an adequate statement of reasons or bases, the Court will vacate the January 23, 2012, decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Navy from September 1983 to September 1986. R. at 1073, 1221. The appellant's service medical records (SMRs) indicate that he sustained an injury to his left foot on May 1, 1984, when aircraft exhaust forced him to jump off the top of a plane where he had been working. R. at 274, 1204. SMRs dated May 3, 1984, and May 9, 1984, indicate that the appellant suffered from heel pain and that he was unable to stand for 15 minutes. R. at 404, 1205. In November 2007, the appellant submitted a claim for disability compensation for "left foot pain and arthritis, left hip, and back pain," which he attributed to the " aviation accident [that] occur[r]ed during [his] military service." R. at 461. That same month, a VA podiatrist diagnosed the appellant with a "bone/joint injury" to the left foot with "[ degenerative joint disease (DJD) secondary] to service related trauma." R. at 228-30. In June 2008, the appellant underwent a compensation and pension examination of his feet. R. at 207-13. The examiner did not review the claims file or the appellant's medical records, but noted the appellant's history of sustaining an injury to his feet in service as well as the following symptoms andfunctionalimpairment:Heelpain,heat,redness, stiffness, fatigability,weakness,lack of endurance, standing limited to 15 to 30 minutes, and the inability to walk more than a few yards. R. at 208-10. The examiner further noted that a physical examination of the left foot showed objective evidence of painful motion (dorsiflexion of ankle, pain in arch); mild tenderness of the medial, lateral, and plantar aspects of the heel; abnormal weight bearing evidenced by callosities; and muscle atrophy of the ball of the foot. R. at 210-11. There was no evidence of swelling, instability, weakness, or malunion or nonunion of the tarsal or metatarsal bones. Id. X-rays of the left foot showed arthritis of the talonavicular joint, but no arthritic changes to the heel. R. at 212-13. The examiner noted that the appellant's left foot disabilityhad " significant effects" on the appellant's occupation as a corrections officer, with "[d]ecreased mobility, [w] eakness or fatigue, [d]ecreased strength: lower extremity, pain," and "[i]ncreased absenteeism." R. at 212. In November 2008, the regional office (RO) granted entitlement to disability compensation for muscle atrophy and callosities of the left foot, and assigned a 20% disability rating, effective November 21, 2007. R. at 369-79. The appellant filed a Notice of Disagreement asserting that he was entitled to a 30% disability rating for his left foot because " orthopedic inserts have not helped the condition[,] but [instead] made it worse." R. at 344. The RO issued a Statement of the Case (R. at 316-33), and the appellant perfected an appeal to the Board (R. at 312- 13). In September 2009, the Board remanded the claim to schedule the appellant for a Board hearing. R. at 299-301. 2 A January2010 outpatient podiatrynote also reflects the appellant's complaint that orthotics were not helping his pain and that he suffered from left foot pain to the plantar fascia, whole arch area, and left lateral three metatarsal heads. R. at 196. In February 2010 he underwent magnetic resonance imaging (MRI) of his left foot, which showed: "Findings most consistent with small fibroma plantar aspect of the foot at the level [of] the first and fifth metatarsals"; a "[p]robable small cyst lateral and dorsal aspect ofthecuboidbone"; [f]luid at the first metatarsal-phalangeal joint"; and "[s]mall focus isointense to bone marrow on all pulse sequences dorsal aspect talonavicular joint likely due to previous trauma." R. at 122-25. On March 3, 2010, the appellant testified at a Board hearing that numerous doctors have linked his current foot and knee disabilities to the injuries he sustained during service. R. at 246-48. The appellant stated that he was entitled to a disability rating greater than 20% because he experienced a lot of pain, tenderness, and discomfort in his left foot, and orthotics did not help his condition. R. at 251. After the hearing, the Board remanded the appellant's claim to obtain outstanding recent treatment records and to schedule him for a VA podiatryexamination to ascertain the severity and manifestations of his muscle atrophy and callosities of the left foot. R. at 232-43. The appellant underwent a second VA compensation and pension examination on July 13, 2010. R. at 111-15. The appellant reported pain in the arch and the ball of his foot and stiffness, weakness, and lack of endurance in the arch while standing and walking. R. at 112. He also reported that the efficacy of orthotic inserts was "poor," and that he was unable to stand for more than a few minutes but could walk a quarter of a mile. R. at 112-13. A physical examination of the left foot showed painful motion, tenderness, muscle atrophyand antalgic gait. R. at 113. There was no evidence of swelling, instability, weakness, or abnormal weight bearing. Id. The examiner diagnosed: "Osteoarthritic changes at talonavicular joint left foot," with increased pain and "[f]at pad atrophy . . . causing pain under [the] plantar aspect of the left foot ." R. at 114. The examiner also noted that the appellant's condition had "[s]ignificant effects" on his general occupation with decreased mobility and pain. Id. In June 2011, the RO issued a Supplemental Statement of the Case that continued to deny a higher disability rating and the matter was returned to the Board. R. at 53-62. On January 23, 3 2012, the Board issued its decision here on appeal denying an initial disability rating in excess of 20% for muscle atrophy and callosities of the left foot. R. at 3-14. II. ANALYSIS On appeal, the parties disagree whether the Board provided an adequate statement of reasons or bases for its decision. The appellant argues that the Board ignored evidence indicating that his condition worsened and failed to adequately explain why he was not entitled to a higher disability rating under Diagnostic Code (DC) 5284. Appellant's Brief (Br.) at 7-11; Reply Br. 1-4; see 38 C.F.R. § 4.71a, DC 5284 (2012). The Secretary argues that the Board did not ignore evidence and its decision "reasonably conveys . . . the basis for the overall conclusion that the severity of [the appellant's] foot symptoms does not rise to the level contemplated by the 30[%] criteria under any of the DCs set out in the rating schedule for foot disabilities." Secretary's Br. at 5-10. The assignment of a disability rating is a factual finding that the Court reviews under the "clearly erroneous" standard of review. Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 ( 1990). In rendering its decision the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. 38 U.S.C. § 7104( d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any 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). In the decision here on appeal, the Board initiallynoted that the appellant's left foot disability is rated by analogy under 38 C.F.R. § 4.71a, DC 5276 (2012) for acquired flatfoot. R. at 7. Under DC 5276, a 20% disabilityratingis assigned for "severe" unilateral flatfoot with "objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, 4 indication of swelling on use, characteristic callosities." 38 C.F.R. § 4.71a, DC 5276. A 30% disability rating is warranted for "pronounced" unilateral flatfoot with " marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances." Id. After providing a detailed recitation of the medical evidence (R. at 8-12) and a summary of the appellant's symptoms (R. at 12-13), the Board concluded that the evidence did not warrant a 30% disability rating under DC 5276 because there was no evidence of "marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo [a]chillis on manipulation." R. at 13. The Board then proceeded to consider whether the appellant was entitled to a higher disability rating under a different DC. Id. The Board found that a higher rating was not warranted under DCs 5278 and 5279, and the appellant does not dispute that finding. See 38 C.F.R. § 4.71a, DCs 5278 and 5279. As noted, the central dispute is whether the Board adequately explained why the appellant was not entitled to a higher disability rating under DC 5284. DC 5284 provides that "foot injuries, other" warrant a 20% disability rating if they are " moderately severe" or a 30% disability rating if they are "severe." 38 C.F.R. § 4.71a, DC 5284. In concluding that the appellant was not entitled to a 30% disability rating under DC 5284, the Board stated: "[F]or the reasons discussed above[,] the Board concludes that the overall impairment of the [ v]eteran's left foot is not more than moderately severe. Therefore, the disability would not warrant more than a 20[%] rating under [DC] 5284." R. at 13. The Court agrees with the appellant that the Board's statement of reasons or bases is inadequate. The Board referred to its "reasons discussed above." However, in analyzing whether the evidence demonstrated entitlement to a higher disabilityratingunder DC 5276, the Board merely listed those symptoms that were present and those that were not, noting that the June 2008 examination showed "mild" tenderness, and the July 2010 examination did not show "extreme tenderness." R. at 13. Thus, although the Secretary is correct that the Board did not ignore the evidence, the Board also did not engage in any analysis or explain its conclusion that the appellant's symptoms are "moderately severe" and not "severe." See R. at 12-13. "The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of 5 reasons and bases." Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) ( citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)). Rather, the "Board must explain, in the context of the facts presented, the rating criteria used in determining the category into which a claimant's symptoms fall; it is not sufficient to simply state that a claimant's degree of impairment lies at a certain level without providing an adequate explanation." Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). Nowhere in the Board's discussion does the Board explain – in the context of the appellant's numerous symptoms – why the appellant's overall impairment is not more than "moderately severe." R. at 13. Moreover, as noted by the appellant, DC 5284 does not provide any guidance or list of symptoms that fall under the category of "moderately severe" or "severe." Reply Br. at 2. Without such guidance, it is especially important that the Board analyze the evidence and explain why the appellant's disability falls into either category. In this case, the only potential basis for the Board's conclusion that the appellant's symptomatology was not "severe" under DC 5284 seems to be that he did not meet the criteria for "pronounced" flatfoot under DC 5276. See R. at 13. However, DC 5276 does not account for all of the appellant's symptoms, such as left foot arthritis, fatigue, pain, and stiffness, none of which are alleviated by the use of orthotics; therefore, the Board's finding that the appellant does not satisfy the criteria under DC 5276 is not nearly sufficient for the Court to understand why his disability is not "severe" under DC 5284. See Reply Br. at 3; see also R. at 112-13, 196, 208-09, 251. Similarly, although DC 5276 requires evidence of "extreme tenderness on plantar surfaces of the feet," and the Board observed that there was evidence of "mild" tenderness in 2008 and no evidence of "extreme" tenderness in 2010, the Board did not explain whether "extreme" tenderness is required under DC 5284, which rates "[f]oot injuries, other" as "moderate," "moderately severe," and "severe." 38 C.RF.R. §4.71a, DC 5284; see R. at 12-13, 113 (noting objective evidence of tenderness upon palpation midfoot dorsum/plantar[,] pain mid plantar arch and submetatarsal 3 [and] 4"). The Board's failure to adequatelydiscuss the evidence frustrates judicial review. Accordingly, the Court will remand the matter to the Board to provide an adequate statement of reasons or bases for its decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). 6 In pursuing the matter 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 benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). 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 Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's January 23, 2012, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 30, 2012 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 7