Veteranclaims’s Blog

December 5, 2012

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

Filed under: Uncategorized — veteranclaims @ 4:47 pm

Excerpt from decision below:
“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of
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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.
============================
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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.
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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)
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