Veteranclaims’s Blog

May 29, 2013

Single Judge Application 38 C.F.R. § 4.21 (2012); Tatum v. Shinseki, 23 Vet.App. 152, 156 (2009)

Excerpt from decision below:
“VA regulation 38 C.F.R. § 4.21 (2012) provides: “[I]t is not expected . . . that all cases will show all the findings specified [in an applicable DC].” Interpreting § 4.21 and other regulations related to evaluating disabilities, this Court has held that in determining whether a higher disability evaluation is warranted, manifestation of all the rating criteria listed is required only where “the evaluation for each higher disability rating included the criteria of each lower disability rating, such
4
that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component.” Tatum v. Shinseki, 23 Vet.App. 152, 156 (2009).
===========================

“However, the Board did not express doubt as to the credibility or probative value of Dr. Wilson’s opinion or the adequacy of his examination. Contrary to the Board’s implication, there is no requirement that symptoms listed under a particular disability evaluation level be found on multiple examinations.
If, as it appears, the Board credited Dr. Wilson’s June 2008 opinion that Mr. Majors manifested “extreme tenderness of plantar surfaces of the feet,” then the Board should have considered that, at least for the period covered by the examination report, the veteran met the “extreme tenderness” requirement, or provided a reasoned explanation why it would not do so. See Fenderson v. West,
12 Vet.App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet.App. 505, 510 (2007) (stating that it is incumbent on the Board to consider and discuss staged ratings when “the factual findings show
5
distinct time periods in which a disability exhibits symptoms that warrant different ratings”). No such consideration is apparent in the Board opinion.
More to the point, the Board did not adequately explain what inference it drew from the fact that other examination reports did not describe tenderness as “extreme.” The February 2007 examination noted moderate tenderness of both feet. R. at 6564. The December 2010 examiner found tenderness “on the ball” of both feet, “especially behind the second and third toe[s].” R. at 64; accord R. at 67. Although the 2010 examiner did not mention the severity of the tenderness, the VA
Clinician’s Guide’s “Feet” worksheet instructs examiners to indicate whether tenderness exists, not to describe or qualify the level of tenderness. See VA CLINICIAN’S GUIDE, ch. 11, Feet Worksheet, §§ C.2, C.7. VA regulations anticipate that examiners will not always “describe the same disability in the same language.” 38 C.F.R. § 4.2 (2012). “It is the responsibility of the rating
specialist”—either the RO or the Board—”to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” Id.; see Buczynski v. Shinseki, 24 Vet.App. 221, 226 (2011) (stating that the “Board fulfill[s] its role when it interpret[s] the medical evidence of record and determine[s] how a disability translate[s] into a specific disability rating pursuant to the applicable diagnostic code”). However, the Board’s analysis does not show that it discharged its duty to “reconcile” the medical examiners’ descriptions with DC 5276’s criteria. To the extent the Board inferred from the absence of the phrase “extreme tenderness” in the December
2010 examination report that the observed tenderness was not extreme, the Board erred. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) (“First, as a general matter when assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” (internal quotation marks and alteration omitted)); Kahana v. Shinseki, 24 Vet.App. 428, 440 (2011) (Lance, J., concurring) (clarifying that the absence of evidence is not negative evidence unless it is the type of information that would necessarily have been recorded)
.”
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“Finally, it is unclear how the Board accounted for the undisputed evidence that Mr. Majors suffers from marked pronation. The Board acknowledged the presence of marked pronation in the veteran’s feet, yet its discussion of this symptom was confined to the following sentence: “Marked pronation, however, is also contemplated in a 30 percent rating.” R. at 12. To the extent that the statement suggests that the Board believed a lower evaluation more appropriate when symptoms satisfy both a lower and a higher evaluation, that view is contrary to VA regulations. See 38 C.F.R. § 4.7 (2012) (“Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.”). If the Board did not intend to adopt that view, its statement is nevertheless unclear and clarification should be provided on remand.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0039
TONY J. MAJORS, 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: Veteran Tony J. Majors appeals, though counsel, from a November 15,
2011, decision of the Board of Veterans’ Appeals (Board), which granted an initial disability
evaluation of 30%, but not higher, for bilateral pes planovalgus.1 Record (R.) at 3-14. This appeal
is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will set aside the November 2011 Board decision and remand the matter
for readjudication consistent with this decision.
I. FACTS
Mr. Majors served on active duty in the U.S. Army from June 1987 to June 2007. R. at 149.
In January 2007, he filed a pre-separation claim for service connection for, inter alia, serviceaggravated
flat feet. R. at 677-86. He submitted a February 2007 VA-contract examination report,
which related the veteran’s report that the condition existed since 1999 with pain at the bottom of his
1 “Flat foot,” also known as “pes planus,” “pes valgus,” and “pes planovalgus,” is “a condition in which one or
more of the arches of the foot have been lowered and flattened out.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
716 (32d ed. 2012) [hereinafter DORLAND'S]. The various terms are used interchangeably in this decision.
feet (described as a 5 out of 10 on a pain scale), stiffness, and fatigue when standing or walking, but
no pain, weakness, stiffness, swelling, or fatigue when at rest. R. at 651. These symptoms made it
difficult to walk, run, or stand for prolonged periods. Id. Upon examining both feet, the examiner
noted some “midfoot malalignment of a slight degree, which can be corrected by manipulation,” and
the presence of hallux valgus. 2 R. at 654. He further observed “moderate tenderness” of the plantar
surfaces. Id. Finally, the examiner stated that corrective footwear did not relieve Mr. Majors’s
symptoms. Id. X-ray results showed severe bilateral pes planovalgus deformity. R. at 655. In an
August 2007 rating decision, the VA regional office (RO) granted service connection for bilateral
pes planovalgus, evaluated as 10% disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276
(2012).3 See R. at 541-63.
Mr. Majors filed a July 2008 Notice of Disagreement (NOD) as to the 10% evaluation,
asserting that his condition warranted a higher evaluation. R. at 592. The veteran attached to his
NOD a June 2008 private “Physician’s Statement” from Dr. Jeffrey Wilson, which seems to indicate
that Mr. Majors’s bilateral flat feet met all the criteria for a “severe” (30%) evaluation and all but one
of the criteria for a “pronounced” (50%) evaluation under DC 5276.4 R. at 594. This statement was
made in conjunction with a June 2008 examination, which found in both feet “mod[erate]/severe
[pes] planus with excessive pronation and hallux valgus def[ormity],” pain on palpitation of the
plantar surfaces, and “thick” calluses. R. at 379; see also R. at 177-78 (May 2008 VA progress note
showing veteran’s complaint of foot pain and statement that shoe inserts were not working). The RO
continued the 10% evaluation for bilateral flat feet (R. at 533-37), and the veteran appealed to the
Board, indicating that he believed his condition warranted a 50% evaluation. R. at 531, 539.
2 “Hallux valgus,” also known as a bunion, is a condition in which one’s big toe points toward the second toe,
causing a bump to appear on the outside edge of the big toe toe. Bunions, National Library of Medicine, National
Institutes of Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002211/ (last visited May 28, 2013).
3 DC 5276 provides separate evaluations for unilateral and bilateral flat foot. As relevant to Mr. Majors’s
appeal, “severe” flat foot is entitled to a 20% evaluation when unilateral and a 30% evaluation when bilateral.
“Pronounced” flat foot is entitled to a 30% evaluation when unilateral and a 50% evaluation when bilateral.
4 The physician, however, crossed out from the “pronounced” criteria list “marked inward displacement and
severe spasm of the tendo achillis on manipulation.” R. at 594.
2
In December 2010, the veteran underwent a VA medical examination. He stated that his feet
are stiff when he wakes, and that the stiffness eases in the morning but then returns in the afternoon.
R. at 62. He also said, when walking or standing for more than one hour, that he experiences pain,
which is relieved somewhat by over-the-counter medication. Id. Mr. Majors further reported that
he developed calluses, which he shaved off, and that his corrective footwear did a poor job of
alleviating his symptoms. R. at 62-63. The examiner found evidence of tenderness, abnormal
weight bearing, callosities, an unusual shoe wear pattern, and vascular calcifications5 for both feet.
R. at 64, 65; see also R. at 177, 182, 341, 379 (VA and private treatment records denoting similar
symptoms). Finally, the examiner noted that pain significantly affected his occupation, as well as
prevented shopping, recreation, and participation in sports. R. at 66. The RO issued a Supplemental
Statement of the Case in February 2011, continuing the 10% evaluation for bilateral flat feet. R. at
47-50.
Mr. Majors testified before the Board in June 2011. He stated that he experiences pain when
standing or moving around. R. at 23-24, 28. He reiterated that he has calluses on his feet that he
treats himself by shaving them off. R. at 24, 26. He again asserted that he suffered from stiffness
and swelling on a daily basis. R. at 25, 31.
The Board issued the decision currently on appeal on November 15, 2011. Initially, the
Board found that other DCs relating to the foot were either inapplicable to his condition or not
advantageous to his claim for increase and, accordingly, continued to evaluate his bilateral flat feet
under DC 5276. R. at 7-8. Next, the Board found that the veteran’s symptoms approximated the
criteria for a 30% evaluation for “severe,” bilateral flat feet and granted an increased evaluation to
that extent but found that the condition did not warrant a higher evaluation. R. at 8-12. This appeal
followed.
5 “Vascular” refers to the blood vessels. DORLAND’S at 2026. “Calcification” is “the process by which organic
tissue becomes hardened by a deposit of calcium salts within its substance.” Id. at 269.
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II. ANALYSIS
Mr. Majors argues that the Board’s statement of reasons or bases is defective because, inter
alia, it failed to explain adequately why he was not entitled to an increased evaluation under DC
5276. Appellant’s Brief (Br.) at 6-8. The Secretary disputes this contention and defends the Board’s
decision. Secretary’s Br. at 5-12.
The Court’s review of the Board’s assignment of a DC is limited to determining whether it
is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
38 U.S.C. § 7261(a)(3)(A); see Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006). The Board’s
assignment of a disability evaluation is a finding of fact subject to the “clearly erroneous” standard
of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997);
Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (stating that 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”). Every Board decision must
include a written statement of reasons or bases for its findings and conclusions on all material issues
of fact and law; this statement must be adequate to enable the appellant to understand the precise
basis for the Board’s decision and to facilitate informed review by this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
57 (1990).
A veteran is entitled to 30% disability evaluation for “severe” bilateral flat feet under DC
5276 when there is “objective evidence of marked deformity (pronation, abduction, etc.), pain on
manipulation and use accentuated, indication of swelling on use, characteristic callosities.” To
justify a 50% evaluation, “pronounced” bilateral flat feet must manifest “marked pronation, extreme
tenderness of 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.
VA regulation 38 C.F.R. § 4.21 (2012) provides: “[I]t is not expected . . . that all cases will show all the findings specified [in an applicable DC].” Interpreting § 4.21 and other regulations related to evaluating disabilities, this Court has held that in determining whether a higher disability evaluation is warranted, manifestation of all the rating criteria listed is required only where “the evaluation for each higher disability rating included the criteria of each lower disability rating, such
4

that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component.” Tatum v. Shinseki, 23 Vet.App. 152, 156 (2009).
In this case, the Board found that an evaluation in excess of 30% was not warranted, stating as follows:
With regard to a rating in excess of 30 percent, the Board is cognizant that the June
2008 private physician indicated that the [v]eteran’s foot disability was productive of
some of the symptomatology (marked pronation, extreme tenderness of the plantar
surfaces of the feet, not improved by orthopedic shoes or appliances) associated with
a 50 percent evaluation. Marked pronation, however, is also contemplated in a 30
percent rating. Tenderness of the feet was not described as “extreme” on any other
examination so this is not a consistent symptom shown as associated with the foot
disability. The [v]eteran has described having problems utilizing arch supports, but
the June 2009 and December 2010 VA examinations indicated that he continued use
of such appliances (“arch supports” and “orthotic inserts”). For these reasons, the Board does not find that the overall symptomatology associated with the [v]eteran’s bilateral foot disability more nearly approximates pronounced impairment rather than severe impairment. R. at 12. The Board noted that there were no reported problems with the tendo Achilles of either foot. R. at 8-10. The Court agrees with Mr. Majors that the Board’s statement of reasons or bases
is deficient and hinders effective judicial review. See Appellant’s Br. at 7-8.
In analyzing Mr. Majors’s potential entitlement to a 50% evaluation for bilateral flat feet, the Board remarked that “[t]enderness of the feet was not described as ‘extreme’ on any other examination so this is not a consistent symptom shown as associated with the foot disability” (R. at 12), referring to the June 2008 examination by Dr. Wilson (see R. at 379, 594). However, the Board did not express doubt as to the credibility or probative value of Dr. Wilson’s opinion or the adequacy of his examination. Contrary to the Board’s implication, there is no requirement that symptoms listed under a particular disability evaluation level be found on multiple examinations.
If, as it appears, the Board credited Dr. Wilson’s June 2008 opinion that Mr. Majors manifested “extreme tenderness of plantar surfaces of the feet,” then the Board should have considered that, at least for the period covered by the examination report, the veteran met the “extreme tenderness” requirement, or provided a reasoned explanation why it would not do so. See Fenderson v. West,
12 Vet.App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet.App. 505, 510 (2007) (stating that it is incumbent on the Board to consider and discuss staged ratings when “the factual findings show
5
distinct time periods in which a disability exhibits symptoms that warrant different ratings”). No such consideration is apparent in the Board opinion.
More to the point, the Board did not adequately explain what inference it drew from the fact that other examination reports did not describe tenderness as “extreme.” The February 2007 examination noted moderate tenderness of both feet. R. at 6564. The December 2010 examiner found tenderness “on the ball” of both feet, “especially behind the second and third toe[s].” R. at 64; accord R. at 67. Although the 2010 examiner did not mention the severity of the tenderness, the VA
Clinician’s Guide’s “Feet” worksheet instructs examiners to indicate whether tenderness exists, not to describe or qualify the level of tenderness. See VA CLINICIAN’S GUIDE, ch. 11, Feet Worksheet, §§ C.2, C.7. VA regulations anticipate that examiners will not always “describe the same disability in the same language.” 38 C.F.R. § 4.2 (2012). “It is the responsibility of the rating
specialist”—either the RO or the Board—”to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” Id.; see Buczynski v. Shinseki, 24 Vet.App. 221, 226 (2011) (stating that the “Board fulfill[s] its role when it interpret[s] the medical evidence of record and determine[s] how a disability translate[s] into a specific disability rating pursuant to the applicable diagnostic code”). However, the Board’s analysis does not show that it discharged its duty to “reconcile” the medical examiners’ descriptions with DC 5276’s criteria. To the extent the Board inferred from the absence of the phrase “extreme tenderness” in the December
2010 examination report that the observed tenderness was not extreme, the Board erred. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) (“First, as a general matter when assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” (internal quotation marks and alteration omitted)); Kahana v. Shinseki, 24 Vet.App. 428, 440 (2011) (Lance, J., concurring) (clarifying that the absence of evidence is not negative evidence unless it is the type of information that would necessarily have been recorded).

The Board also stated: “The [v]eteran has described having problems utilizing arch supports, but the June 200[8] and December 2010 VA examinations indicated that he continued use of such appliances (‘arch supports’ and ‘orthotic inserts’).” R. at 12. At best, this is a vague observation that does not address the relevant criterion for a 50% bilateral evaluation under DC 5276, namely,
6

whether Mr. Majors’s condition was “not improved by orthopedic shoes or appliances.” See Allday, supra (stating that the Board must discuss all material facts). If, however, the Board’s statement constitutes a finding that corrective shoe wear improved the veteran’s bilateral flat feet, the Board must explain that finding in the context of substantial evidence to the contrary. See R. at 63 (noting that efficacy of corrective shoe wear was “poor”), 177 (“He states that the shoe inserts have not helped with his foot pain at all . . . .”), 182 (recording complaint that “shoe inserts [are] not working”), 654 (“The symptoms and pain are not relieved by the previously noted corrective shoe wear.”).
Finally, it is unclear how the Board accounted for the undisputed evidence that Mr. Majors suffers from marked pronation. The Board acknowledged the presence of marked pronation in the veteran’s feet, yet its discussion of this symptom was confined to the following sentence: “Marked pronation, however, is also contemplated in a 30 percent rating.” R. at 12. To the extent that the statement suggests that the Board believed a lower evaluation more appropriate when symptoms satisfy both a lower and a higher evaluation, that view is contrary to VA regulations. See 38 C.F.R. § 4.7 (2012) (“Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.”). If the Board did not intend to adopt that view, its statement is nevertheless unclear and clarification should be provided on remand.
For the foregoing reasons, the Court finds that the Board’s statement of reasons or bases for determining that Mr. Majors’s condition did not warrant an evaluation in excess of 30% is inadequate and inhibits judicial review. See Allday and Gilbert, both supra. Accordingly, the Court will set aside the Board decision and remand the case for additional proceedings. 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”). Given the Court’s decision to remand this matter, the Court need not address the veteran’s additional arguments. Mr. Majors may raise those contentions for Board consideration in the first instance. 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
7

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, Mr. Majors is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112.

III. CONCLUSION
Upon consideration of the foregoing, the November 15, 2011, Board decision is SET ASIDE, and the matter is REMANDED for readjudication consistent with this decision.
DATED: May 28, 2013
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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