Wednesday, December 5, 2012

Single Judge Application, Murray v. Shinseki, 24 Vet.App. 420, 423(2011); Separate Disability Ratings for Separate and Distinct Symptoms

Excerpt from decision below: "In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423(2011) (quoting Esteban, 6 Vet.App. at 262). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3509 ROBIN L. KERNS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY,Judge: U.S. ArmyveteranRobinL.Kerns, whois self-represented, appeals from an August 15, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for (1) a right knee disorder; (2) memory loss and impaired concentration, to include as a chronic disabilityresultingfrom an undiagnosed illness; and (3) an adjustment disorder, to include as a chronic disability resulting from an undiagnosed illness.1 Record (R.) at 3-24. This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the portion of the August 2011 Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration and will remand that claim for readjudication consistent with this decision. The Court The Board also remanded theissuesof entitlement to(1) serviceconnectionforshortnessofbreathandasthma, to include as a chronic disability resulting from an undiagnosed illness; ( 2) service connection for a menstrual disorder, to include as a chronic disability resulting from an undiagnosed illness; ( 3) an effective date prior to February 24, 2010, for a 40% evaluation for fibromyalgia; and (4) an effective date prior to March 7, 2007, for a total rating based on individual unemployability (TDIU). Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those issues at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F. R. § 20.1100(b). 1 will affirm the Board's decision as to her claims for service connection for right knee and adjustment disorders. I. FACTS Ms. Kerns served on active duty for training from June 1990 to October 1990 and on active duty from February 1991 to October 1991, including service in Southwest Asia in support of Operations Desert Shield and Desert Storm. R. at 4, 581. Following service, she was awarded service connection for a disabilitymanifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder. R. at 1282-89. In August 2005, Ms. Kerns filed a claim for service connection for, inter alia, a right knee disorder, memoryloss and impaired concentration, and an adjustment disorder. R. at 991-1019. An October 2005 VA progress note indicates that Ms. Kerns had a diagnosis " most consistent with an Adjustment Disorder related to her medical conditions." R. at 981. Subsequent VA medical records also contain diagnoses of an adjustment disorder due to or related to physical pain. R. at 961, 963. However, a January 2006 VA medical examination concluded that Ms. Kerns " does not meet [the] diagnostic criteriaforanypsychiatricdiagnosis"andexplained thatherreportedsymptoms were"not the result of any psychiatric disorder" and "may be attributable to her medication" for treating her fibromyalgia with fatigue. R. at 717. The following month, a VA physician stated that Ms. Kerns's knee pain was "part of her fibromyalgia and chronic pain with possible superimposed arthritis." R. at 312. In the meantime, a VA regional office (RO) sent Ms. Kerns a letter notifying her of the evidence she needed to submit to substantiate her August 2005 claims for direct and secondary service connection. See R. at 943 (outlining the evidence needed "to support [a] claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability"), 944 (outlining the evidence needed "to support [a] claim for service connection"). In January 2007, the RO denied entitlement to service connection for a right knee disorder, memorylossandimpairedconcentration,andanadjustment disorderbecauseit foundthatMs. Kerns did not have a current knee or psychiatric disability that was compensable for VA purposes. R. at 2 652-59. She filed a timely Notice of Disagreement (NOD) with that decision and subsequently perfected her appeal to the Board. R. at 198-99, 604-09. In May 2007, Ms. Kerns underwent a VA medical examination, at which time she complained of muscle pain, joint pain and stiffness, difficulty sleeping, abdominal cramping, and irregular menses. R. at 224-25. The examiner opined that "[a]ll complaints except sleep apnea belong to a diagnosis of fibromyalgia." R. at 225. In June 2007, the RO issued a decision recharacterizing Ms. Kerns's service-connected disability manifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder as fibromyalgia with fatigue. R. at 200-11. The RO also acknowledged that Ms. Kerns raised the issue of entitlement to TDIU and deferred a decision on that issue pendingthe receipt of a completed unemployabilityquestionnaire. R. at 204. Laterthat month, the RO issued a decision denying entitlement to TDIU. R. at 39.2 In October 2007, the RO denied a claim for an increased evaluation for fibromyalgia with fatigue. Id. It appears that Ms. Kerns timely appealed that denial, as well as the RO's previous denial of entitlement to TDIU, to the Board. Id. In October 2009, the Board issued a decision remanding the issues of entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorder; an increased evaluation for fibromyalgia with fatigue; and TDIU for further development. R. at 36-53. Pursuant to that remand order, Ms. Kerns underwent a VA psychiatric examination in February2010. R. at 446-52. Afterreviewingthe claims file, recording Ms. Kerns's complaints, and performing a mental status examination and other psychological tests, the examiner concluded that Ms. Kerns did "not meet the [Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)] criteria for the diagnosis of an adjustment disorder or anyother psychiatric disorder." R. at 451. The examiner opined that Ms. Kerns reported "difficulty with her memory and concentration, which, by definition, is part of her already service-connected fibromyalgia." R. at 452. The examiner also The Court notes that the record of proceedings does not contain a copy of that decision and several other documents related to the development and adjudication of Ms. Kerns's entitlement to TDIU and an increased evaluation for fibromyalgia with fatigue. The Secretary also did not provide that information in his brief. Therefore, the procedural history for those issues is largely derived from the summary of those issues included in the October 2009 Board decision, cited above. 2 3 explained that there were "not any psychiatric symptoms . . . that are separate from [Ms. Kerns's] already service-connected and diagnosed fibromyalgia." R. at 452. It appearsthatMs. Kerns alsounderwentaVAjointsexamination in February2010, although that examination report is not contained in the record of proceedings. See R. at 385 (RO summary of the February 2010 VA joints examination). According to the RO, that examination revealed an increasein Ms. Kerns's fibromyalgiasymptoms, includingconstant, refractoryjoint painandfatigue. Id. Based on that examination, the RO issued a November 2010 Supplemental Statement of the Case(SSOC) increasingthedisabilityevaluation forfibromyalgiawithfatigueto40%,themaximum schedular evaluation for that disability, and awarding entitlement to TDIU. R. at 393-417. In February 2011, the RO issued a decision review officer decision implementing those awards. R. at 358-63, 382-90. The cover letter accompanying that decision instructed Ms. Kerns to submit a written NOD if she disagreed with that decision and to refer to the enclosed VA Form 4107, Your Rights to Appeal Our Decision, for more information on her right to appeal. R. at 362-63. In April 2011, Ms. Kerns filed an NOD, stating that she wished to appeal the effective dates assigned for the increased evaluation for fibromyalgia with fatigue and the award of TDIU. R. at 341-43. In August 2011, the Board issued the decision currentlyon appeal, which denied entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorderandremandedtheissues ofentitlementtoearliereffectivedatesforfibromyalgia with fatigue and TDIU. Record (R.) at 3-24. The Board determined that Ms. Kerns's claimed right knee pain and psychiatric problems were symptoms of her service-connected fibromyalgia with fatigue, such that separatelycompensating those symptoms would violate the regulatoryprohibition against pyramiding. R. at 11-19. The Board also stated that "[s]he did not argue [in her April 2011 NOD] that the 40[%] evaluation for fibromyalgia was inadequate" and "deem[ ed] that portion of her appeal to be satisfied." R. at 21. This appeal followed. 4 II. ANALYSIS A. Claims for Service Connection Currently on Appeal As an initial matter, Ms. Kerns argues that VA did not inform her of the information and evidence necessary to establish secondary service connection for her claimed right knee disorder, memory loss and impaired concentration, and adjustment disorder. Appellant's Brief (Br.) at 2. However, as the Secretarycorrectlynotes, the record contains a January2006 pre-adjudication letter from the RO that set forth the elements necessary to support a "claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability." R. at 943. Ms. Kerns has not explained how this notice was deficient or how she was otherwise prejudiced by it. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that " the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"). Therefore, her argument must fail. Ms. Kerns next argues that the Board failed to consider whether her right knee disorder, memory loss and impaired concentration, and adjustment disorder may be service connected secondary to her fibromyalgia with fatigue. See Appellant's Br. at 1-3. She also challenges the Board's finding that her claimed conditions are symptoms of her service- connected fibromyalgia, rather than separate disabilities related to it. See id. The Secretary disputes her contentions and asserts that the Board's findings are plausible based on the record and supported by an adequate statement of reasons or bases. See Secretary's Br. at 7-9. The Court will address these arguments separately with respect to each of Ms. Kerns's claimed disabilities. 1. Applicable Law "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity . . . are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2012). However, "[t]he evaluation of the same disability under various diagnoses," a practice called pyramiding, "is to be avoided." 38 C.F.R. § 4.14 (2012). The rationale for the prohibition on pyramiding is that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment" suffered. Brady v. Brown, 4 Vet.App. 203, 5 206 (1993). When determining whether separate evaluations are warranted, "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet.App. 259, 262 (1994). In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423 (2011) (quoting Esteban, 6 Vet.App. at 262). The Board's attribution of certain symptoms to certain disabilities is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38U.S.C. §7261(a)(4);see Murray, 24 Vet.App. at 423. "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the Board is required to provide a written statement of reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enablea claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be 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). 2. Right Knee Disorder Contrary to Ms. Kerns's argument, the Board expressly addressed whether she was entitled to service connection for a right knee disorder secondaryto her service- connected fibromyalgia with fatigue, but determined that her right knee symptoms did not represent a separate disability from her fibromyalgia with fatigue. R. at 11-14. Specifically, the Board explained that "the majority of the Veteran's doctors have either found the knee to be normal, or like the December 2005/February2006 and February 2010 doctors[,] have specifically attributed this pain to her fibromyalgia[,] which is a disability for which service connection has already been established." R. at 13. 6 To the extent that any right knee symptoms are attributable to fibromyalgia, the Board correctlyconcluded that those symptoms are alreadyaccounted for and compensated byMs. Kerns's 40% evaluation for fibromyalgia with fatigue, which is based on, inter alia, "widespread musculoskeletal pain and tender points." 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025 (2012). A note to that DC states that "widespread pain" includes "pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton . . . and the extremities." Id. (emphasis added). Thus, as the Board found, separately compensating Ms. Kerns for right knee pain that has been attributed by her doctors to her service- connected fibromyalgia would constitute pyramiding because that pain is not distinct and separate from her fibromyalgia symptoms, for which she is already being compensated. See Brady and Esteban, both supra; 38 C.F.R. § 4.14. The Court, therefore, is not persuaded that the Board committed clear error in that regard. See Previous HitMurrayNext Document, 24 Vet.App. at 423. The Board also acknowledged that the record contains two diagnoses of right knee disorders separate from fibromyalgia–a March 1996 diagnosis of patellofemoral syndrome and a February 2010 diagnosis of minimal degenerative changes of the knee. R. at 13-14. The Board, however, found that they were not related to Ms. Kerns's service. R. at 14. The Board explained that Ms. Kerns's diagnosis of patellofemoral syndrome was made "more than four and a half years after discharge from service," "neither the examiner nor the Veteran attributed this syndrome to active service," "this diagnosis has not been repeated," and it "has not been made since service connection for fibromyalgia was established." R. at 13. The Board also stated that there was "no evidence of degenerative changes during service," the diagnosis of degenerative changes of the right knee "was made many years after the end of the one[-]year presumptive period" for service connection for arthritis, "every X-ray study dated prior to February 2010" was negative for arthritis, "[t]here is no medical opinion that relates the current degenerative changes to any injury or event in active service or to any service[-]connected disability," and "the Veteran herself does not relate the degenerative changes to any specific trauma in service." R. at 13-14. In light of the foregoing statements, and absent evidence of a relationship to service, the Court does not discern any clear error in the Board's finding that Ms. Kerns's diagnosed patellofemoral syndrome and degenerative changes of the right knee were not subject to service 7 connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (reiterating that a nexus between the claimed in-service disease or injury and the current disability is a necessary element of service connection); Russo v. Brown, 9 Vet.App. 46, 50 (1996) ( explaining that the Court reviews the Board's determination regarding entitlement to service connection under the "clearly erroneous" standard of review). 3. Adjustment Disorder The Board also determined that Ms. Kerns was not entitled to service connection for an adjustment disorder on a primary or secondary basis. R. at 17. Significantly, the Board found that a preponderance of the evidence was against a finding that Ms. Kerns had a current psychiatric disability separate from the psychiatric symptoms of her fibromyalgia with fatigue. R. at 17. In support of that finding, the Board pointed to various VA medical examinations that were all negative for a psychiatric disability. Id. The Board also acknowledged that the record contains clinical assessments and one diagnosis of an adjustment disorder, as well as notations of depression, but found that "each of the examiners who ha[s] noted an adjustment disorder [ or] depression . . . has also attributed this to the fibromyalgia, the chronic fatigue, or both." R. at 18. The Board then emphasized that "none of these examiners [has] opined that the Veteran has a psychiatric disability that is a separate entity from the fibromyalgia." Id. A review of the record confirms that finding, and Ms. Kerns's 40% evaluation takes into account various psychiatric symptoms, such that compensating her separately for those symptoms would constitute pyramiding. See 38 C.F.R. §§ 4.14 (prohibiting pyramiding), 4.71a, DC 5025 (listing fatigue, sleep disturbances, headaches, depression, and anxiety as symptoms of fibromyalgia). Thus, because Ms. Kerns's psychiatric symptoms have all been attributed to her service-connected fibromyalgia with fatigue, the Court concludes that the Board did not err in denying her secondary service connection for an adjustment disorder. See Brady and Esteban, both supra. Moreover, absent any separately diagnosed psychiatric disability, Ms. Kerns is not entitled to service connection for that claimed condition on a direct basis. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) ("Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof 8 of present disability there can be no valid claim." (citation omitted)); see also Shedden, 381 F.3d at 1166-67 (outlining the elements of service connection). Therefore, the Board also discerns no clear error in the Board's denial of her claim for entitlement to service connection for an adjustment disorder on a direct basis. See Russo, 9 Vet.App. at 50. 4. Memory Loss and Impaired Concentration a. Reasons or Bases For reasons that remain unclear, the Board combined its analysis of Ms. Kerns's claim for serviceconnection formemorylossandimpairedconcentrationwith herclaimforserviceconnection for an adjustment disorder. R. at 14-19. As explained above, the Board found that all of Ms. Kerns's reported psychiatric symptoms, which the Board stated included memory loss and concentration problems, were attributable to her service-connected fibromyalgia with fatigue. R. at 17-18. The Board then concluded that the 40% schedular evaluation for fibromyalgia with fatigue adequately compensated Ms. Kerns for her memory loss and impaired concentration, such that any additional compensation for those symptoms would constitute pyramiding in violation of § 4.14. R. at 18. Although the Board found that "the rating criteria for the Veteran's fibromyalgia with fatigue take into consideration the symptoms that have been identified," DC 5025 does not list neuropsychological symptoms, such as memory loss and impaired concentration, among its descriptive symptoms. Id.; see 38 C.F.R. § 4.71a, DC 5025. Moreover, contrary to the Board's finding, VA classifies memory loss as a neuropsychological symptom, not a psychiatric symptom. See Compensation for Certain Diagnosed Illnesses, 60 Fed. Reg. 6660, 6601 ( Feb. 3, 1995) (explaining that, "consistent with current VA rating procedures," "memory loss is included within the category 'neuropsychological signs or symptoms'"). Thus, absent any further explanation from the Board, it is unclear why the Board accepted the February2010 VA examiner's finding that Ms. Kerns's memory loss and impaired concentration were part of her fibromyalgia and how the Board arrived at its conclusion that she was being compensated for those symptoms under her schedular evaluation for fibromyalgia. See Gilbert, 1 Vet.App. at 57. The Court therefore concludes that the Board's statement of reasons or bases for theportion ofits decisionaddressingentitlementto serviceconnection formemorylossandimpaired concentration was inadequate. 9 b. Extraschedular Evaluation The Court further notes that, although Ms. Kerns is currently in receipt of the maximum schedularevaluationforherfibromyalgia, shemayneverthelessreceiveanextraschedularevaluation for a disability picture not captured by the schedular criteria. See Thun v. Peake, 22 Vet.App. 111, 115 (2008) (explaining that referral for extraschedular consideration is warranted when, inter alia, "the schedular evaluation does not contemplate the claimant's level of disability and symptomatology");38C.F.R.§3.321(b)(providingforextraschedularevaluation in "theexceptional case where the schedular evaluations are found to be inadequate"). The Board, however, did not analyze whether she was entitled to referral for extraschedular consideration. See id. ("When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specificallyadjudicatethe issue of whetherreferral for an extraschedularratingis warranted."). That deficiency rendered the Board's statement of reasons or bases for its decision on this claim inadequate. See 38 U.S.C. § 7104(a) (requiring the Board to consider and discuss in its decision all "applicable" provisions of law and regulation); Gilbert, 1 Vet.App. at 57. The Court therefore concludes that vacatur and remand are warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ("WheretheBoardhasincorrectlyappliedthelaw,failedto provide anadequatestatementofreasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). Ms. Kerns is free to submit additional argument and evidence as to her claim for memory loss and impaired concentration on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 ( 1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112. B. Other Claims Not Currently on Appeal Ms. Kerns alsoasserts thatshe" didnotreceivenotificationregardingassignmentofdisability rating and effective dates [for fibromyalgia with fatigue] until after initial adjudication of the claim." Appellant's Br. at 3. It appears that she is arguing that the Board's determination that she did not 10 appeal the 40% evaluation assigned for that service-connected disabilitywas clearlyerroneous. The Court disagrees. The record reflects that the RO sent Ms. Kerns a letter in February 2011 informing her that she had been awarded a 40% evaluation for fibromyalgia with fatigue and providing her with instructions on how to appeal that determination, should she disagree with it. R. at 362-63. That letter also expressly referred to the enclosed VA Form 4107, which outlines the specific steps for disagreeing with a VA decision and perfecting an appeal to the Board. Id. It is unclear, however, why the Board sent Ms. Kerns a letter requesting that she file an NOD given that she had previously filed one with respect to the RO's October 2007 denial of her claim for an increased evaluation for fibromyalgia: that claim remained in appellate status even after the RO issued the November 2010 SSOC awarding her a 40% evaluation for that condition and the February 2011 decision review officer decision implementing that award. See AB v. Brown, 6 Vet.App. 35, 38 (1993) (holding that "once a claim is in 'appellate status' by virtue of a previously filed NOD, the claimant may not file an additional NOD which could confer jurisdiction on this Court as to that claim"). In other words, had the Board required Ms. Kerns to file a second NOD and Substantive Appeal to obtain appellate review of the award of the increased evaluation for fibromyalgia with fatigue, it would have committed error. See id. However, the Board did not do so here. Instead, the Board addressed Ms. Kerns's claim for an increased evaluation for fibromyalgia with fatigue and (1) remanded the issue of entitlement to an earlier effective date for the 40% evaluation for that condition; and (2) determined that her appeal of the schedular evaluation for fibromyalgiawassatisfiedbecauseshehadalreadybeenawardedthemaximum schedularevaluation available under the applicable DC. R. at 19. Because the Board was correct that DC 5025 does not provide for a schedular evaluation for fibromyalgia greater than 40%, the Court discerns no error in the Board's treatment of the schedular evaluation portion of her fibromyalgia claim. See AB, 6 Vet.App. at 38 ("[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seekingthe maximum benefit allowed bylaw and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded."). Ms. Kerns finally argues that VA has not yet issued an SSOC regarding the issues remanded by the Board. See Appellant's Br. at 3. Those issues, however, are not before the Court at this time 11 because a remand is not a final Board decision that the Court has jurisdiction to review. See Howard, 220 F.3d at 1344; Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20. 1100(b). To the extent that Ms. Kerns believes that VA's delay in issuing an SSOC amounts to an arbitrary refusal to act, her proper recourse is to file with the Court a petition for extraordinary relief in the nature of a writ of mandamus to attempt to compel that action. See Costanza v. West, 12 Vet. App.133, 134 (1999) (per curiam order). III. CONCLUSION Upon consideration of the foregoing, the portion of the August 15, 2011, Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration is VACATED and the claim is REMANDED for readjudication consistent with this decision. The portions of the Board decision addressing her claims for service connection for right knee and adjustment disorders are AFFIRMED. DATED: November 7, 2012 Copies to: Robin L. Kerns VA General Counsel (027) 12

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