Veteranclaims’s Blog

August 14, 2015

Panel Application, Wingard v. McDonald, 779 F.3d1354, 1357 (Fed. Cir. 2015); DC Language Interpertation

Excerpt from decision below:

“Our dissenting colleague asserts that the “suggestion that a disability listed in the rating schedule can only be
rated under its listed DC when other provisions exist[] comes dangerously close to the Court reviewing the schedule of ratings for disabilities.” Post at 8. His analysis, however, begs the question of whether DC 5284 does, in fact, apply to the appellant’s conditions, and it mischaracterizes the Court’s review in this case. Rather than engaging in a prohibited review of the Schedule or the Secretary’s actions in adopting it, see 38 U.S.C. § 7252(b), the Court’s opinion instead “involve[s] ‘an interpretation of language in the regulations’ related to the [S]chedule,”Wingard v. McDonald, 779 F.3d1354, 1357 (Fed. Cir. 2015).”

==========================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0929
ULYSSES COPELAND, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided June 25, 2015)
Robert V. Chisholm, Judy J. Donegan, and Michael S. Just, all of
Providence, Rhode Island,
were on the brief for the appellant.
Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant General
Counsel; Kenneth
A. Walsh, Deputy Assistant General Counsel, and Jonathan G. Scruggs, all
of Washington, D.C.,
were on the brief for the appellee.
Before LANCE, SCHOELEN, and GREENBERG, Judges.
LANCE, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a
dissenting opinion.
LANCE, Judge: The appellant, veteran Ulysses Copeland, appeals through
counsel a February 26, 2014, decision of the Board of Veterans’ Appeals (Board) that,
in part, denied entitlement to a disability rating greater than 50% for bilateral pes
planus with hallux valgus.1
Record (R.) at 2-18. On April 14, 2015, this case was submitted to a panel
for review, and on April 27, 2015, the Court ordered the parties to file supplemental memoranda of
law. The parties filed
The Board also granted entitlement to a 50% disability rating for Mr.
Copeland’s bilateral pes planus with hallux valgus for the period prior to October 30, 2013. The Court cannot
disturb this favorable finding. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). In addition, the Board remanded the issue of entitlement to a total disability rating based upon individual unemployability, and the Court lacks jurisdiction over that matter. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
1

their supplemental memoranda on May 11, 2015. For the reasons that follow,
the Court will affirm the Board’s decision.
I. BACKGROUND
Mr. Copeland served in the U.S. Army from January 23, 1951, to December 29,
1952. R. at 308. In March 1964, he submitted a claim for entitlement to service
connection for pes planus,
which the Board granted in a June 10, 1966, decision. R. at 1610-14. A
June 29, 1966, VA regional
office (RO) decision assigned an initial 10% disability rating. R. at 1609.
Since that time, Mr.
Copeland has submitted several claims for increased disability ratings,
most recently in April 2008.
R. at 884-85. The RO issued a decision in September 2008 granting a 30%
disability rating,
effective April 8, 2008. R. at 821-26. Mr. Copeland filed a Notice of
Disagreement in October
2008, R. at 802-03, and perfected his appeal to the Board in May 2009, R.
at 707.
In October 2010, Mr. Copeland underwent a QTC contract medical examination.
R. at 584-
86. The examiner, Dr. James Collier, discussed Mr. Copeland’s symptoms,
including pain in both
feet,weakness,stiffness,swelling,fatigue,abnormalweightbearing,
andcallositieswithtenderness.
R. at 585. Dr. Collier noted that Mr. Copeland’s range of motion was
normal. R. at 586. He
diagnosed Mr. Copeland with bilateral pes planus, “not due to injury or
trauma,” as well as hallux
valgus “as a result of a progression of the previous diagnosis.” R. at 584-
85. Relying on the
October 2010 examination, the RO issued a decisiononDecember 17, 2013,
that granted entitlement
to a 50% disability rating for pes planus, effective October 30, 2013. R.
at 187-92.
On February 26, 2014, following additional development, the Board issued
the decision now
on appeal. R. at 2-18. In it, the Board found that a 50% disability rating
was warranted for the
period from April 8, 2008, to October 30, 2013. R. at 10. The Board
determined, however, that a
disability rating greater than 50% was not appropriate at any time since
April 8, 2008. R. at 10-11.
In making this determination, the Board considered whether increased
ratings were warranted under
various diagnostic codes (DCs), including DC 5276, for acquired flatfoot,
DC 5278, for claw foot,
DC 5280, for hallux valgus, and DC 5284, for “foot injuries, other.” R. at
9-10; see 38 C.F.R.
§ 4.71a, DCs 5276, 5278, 5280, and 5284 (2014). Although the Board noted
that DC 5280 was
potentially applicable in light of Mr. Copeland’s diagnosis of hallux
valgus, it determined that his
hallux valgus was only “slight to moderate without surgical resection,”
and so a separate disability
2

rating was not warranted.2
R. at 10. The Board also determined that DC 5284 was potentially
applicable but that neither a higher evaluation nor a separate evaluation
were warranted under that
code. Id. Finally, the Board found that referral for extraschedular
consideration was not warranted.
R. at 11-12. Accordingly, the Board denied Mr. Copeland’s claim. R. at 12.
This appeal followed.
II. THE PARTIES’ ARGUMENTS
Mr. Copeland contends that the Board erred when it failed to grant him
separate 30%
disability ratings under DC 5284 for his foot disabilities. Appellant’s
Brief (Br.) at 4-7. In
particular, he contends that the Board’s selection of DC 5276 over DC 5284
was “inconsistent with
the law and patently fallacious,” as “his service-connected disabilities
are not all contemplated under
a single DC.” Id. at 4, 6. He also contends that the Board failed to
adequately explain why,
although he is entitled to a “pronounced” rating under DC 5276, he is not
entitled to a “severe” rating
under DC 5284, “a lesser degree of severity.” Id. at 5. Finally, in his
supplemental memorandum
of law, Mr. Copeland argues that rating his pes planus and hallux valgus
under DC 5284 is not rating
by analogy, as “both DC 5276 and DC 5284 are potentially appropriate
diagnostic codes,” and that
DC 5284, though facially limited to “foot injuries, other,” is applicable
to all foot conditions as a
“catch-all.” Appellant’s Supplemental (Supp.) Memorandum (Mem.) at 1-4. He
asks the Court to
remand the Board’s decision.
The Secretary responds that the appellant’s pes planus and hallux valgus
may not be rated
under DC 5284, as there are DCs that specifically address those conditions.
He argues, accordingly,
that rating them under any other code, including DC 5284, would constitute
rating by analogy,
which is not permitted when there is “a DC that is specifically labeled
with the name of a particular
condition.” Secretary’s Supp. Mem. at 3-5. He also argues that the Board’s
selection of DC 5276
was not improper. Secretary’s Br. at 7-12. He asks the Court to affirm the
Board’s decision.
2
A 10% disability rating for unilateral hallux valgus requires an operation
with resection of the metatarsal head
or severity equivalent to amputation of the great toe. 38 C.F.R. § 4.71a,
DC 5280.
3

III. ANALYSIS
As a threshold question, the Court must consider whether the appellant’s
diagnosed
conditions—pes planus and hallux valgus—may be rated under DCs other
than the specific DCs for
those conditions, namely DC 5276 for pes planus and DC 5280 for hallux
valgus. For the reasons
that follow, the Court holds that they may not.
Service-connected disabilities are evaluated using the criteria set forth
in VA’s schedule for
rating disabilities (Schedule), which is codified in part 4 of title 38 of
the Code of Federal
Regulations. See Buczynski v. Shinseki, 24 Vet.App. 221, 223 (2011); 38 C.
F.R. part 4. Once VA
grants service connection for a disability, it must select a diagnostic
code from the Schedule “for the
purpose of showing the basis of the evaluation assigned,” and “[g]reat
care will be exercised in the
selection of the applicable code number and in its citation on the rating
sheet.” 38 C.F.R. § 4.27
(2014).
For conditions that are not specifically listed in the Schedule, VA
regulations provide that
those conditions may be rated by analogy under the DC for “a closely
related disease or injury.”
38 C.F.R. § 4.20 (2014); see 38 C.F.R. § 4.27 (“When an unlisted disease,
injury, or residual
condition is encountered, requiring rating by analogy, . . . .” (emphasis
added)). Where, however,
a condition is listed in the schedule, rating by analogy is not
appropriate. In other words, “[a]n
analogous rating . . . may be assigned only where the service-connected
condition is ‘unlisted.'”
Suttmann v. Brown, 5 Vet.App. 127, 134 (1993) (emphasis added).3
Instead, a listed condition
should be rated under the DC that specifically pertains to it.
Since this Court’s decision in Suttmann, it has issued several decisions
that appear to suggest
the possibility of rating listed conditions by analogy. For example, in
Stephens v. Principi, the Court
held that the Board’s selection of a DC “specifically labeled with the
name of the veteran’s
diagnosed, service-connected condition . . . was not arbitrary or
capricious, not an abuse of
discretion, and was in accordance with law.” 16 Vet.App. 191, 194 (2002) (
per curiam order).
Similarly, in Tropf v. Nicholson, the Court noted in dicta that the
Secretary’s practice of using
hyphenated ratings pursuant to § 4.27 was “a tool that explains how . . .
diseases are being rated
3
The Court notes that neither party cited Suttmann in their briefs and that
Mr. Copeland did not address it in
his supplemental memorandum of law.
4

when the explicit diagnostic code for the condition is inadequate.” 20
Vet.App. 317, 321 n.1 (2006).
Nothing in these decisions contradicts the Court’s holding in Suttmann,
however, and that case
remains good law. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (
panel decisions constitute
binding precedent unless overturned by, inter alia, the en banc Court or
the U.S. Court of Appeals
for the Federal Circuit).
Therefore, the Court reiterates that when a condition is specifically
listed in the Schedule,
it may not be rated by analogy. The fact that the appellant has been
diagnosed with two separate
conditions does not change this analysis; rather, VA must—as it did
here—apply the DCs that
specifically pertain to the listed conditions and determine the
appropriate disability ratings. Both
pes planus and hallux valgus are listed in the Schedule, and the Board
properly considered whether
increased evaluations were warranted under both DC 5276 and DC 5280. R. at
9-11.
Nonetheless, Mr. Copeland baldly argues that rating his condition “under
DC 5284 would
not be rating ‘by analogy,'” Appellant’s Supp. Mem. at 2. This assertion
is belied by a plain reading
of that DC.4
See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 4090 (1993) (“The
starting point
in interpreting a statute [or regulation] is its language.”); Smith v.
Brown, 35 F.3d 1516, 1523 (Fed.
Cir. 1994) (“The canons of construction of course apply equally to any
legal text and not merely to
statutes.”). DC 5284 is labeled “Foot injuries, other.” 38 C.F.R. § 4.71a,
DC 5284. As our
dissenting colleague astutely notes,”the word ‘other’ is not superfluous.”
Post at 7; see Moskal v.
United States, 498 U.S. 103, 109 (1990) (noting “the established principle
that a court should ‘give
effect, if possible, to every clause and word of a statute'” (quoting
United States v. Menasche,
348 U.S. 528, 538-39 (1955))). Rather, it must be read in the context of
DC 5284’s position as one
of nine DCs that pertain to musculoskeletal disabilities of the foot. See
38 C.F.R. § 4.71a, DCs
5276-5284 (2014). To hold that DC 5284 applies to the other eight listed
foot conditions would
essentially render those DCs redundant. “The Court simply cannot accept a
construction that would
render . . . entire DC[s] superfluous in this manner.” Prokarym v.
McDonald, __ Vet.App. __, __;
Our dissenting colleague asserts that the “suggestion that a disability listed in the rating schedule can only be
rated under its listed DC when other provisions exist[] comes dangerously close to the Court reviewing the schedule of ratings for disabilities.” Post at 8. His analysis, however, begs the question of whether DC 5284 does, in fact, apply to the appellant’s conditions, and it mischaracterizes the Court’s review in this case. Rather than engaging in a prohibited review of the Schedule or the Secretary’s actions in adopting it, see 38 U.S.C. § 7252(b), the Court’s opinion instead “involve[s] ‘an interpretation of language in the regulations’ related to the [S]chedule,” WingardNext Hit v. McDonald, 779 F.3d1354, 1357 (Fed. Cir. 2015).
4
5

2015 WL 1640719, at *4 (Apr. 14, 2015). The Court therefore holds that,
as a matter of law, DC
5284 does not apply to the eight foot conditions specifically listed in §
4.71a, and so rating Mr.
Copeland’s listed conditions under that DC would constitute an
impermissible rating by analogy.
See Suttmann, 5 Vet.App. at 134; cf. 38 C.F.R. §§ 4.20, 4.27.
Mr. Copeland also contends that he should be rated under DC 5284, as “his
service-
connected disabilities are not all contemplated under a single DC.”
Appellant’s Br. at 4. This
argument, however, overlooks the fact that there are already safeguards in
place to compensate a
veteran both for symptoms outside the rating criteria for a particular
condition and for the combined
effects of multiple service-connected disabilities. First, if the same
injury results in separate and
distinct manifestations, “then the appropriate course of action is to
recognize each of them and then
combine the two separate ratings.” Tropf, 20 Vet.App. at 321 (citing
Esteban v. Brown, 6 Vet.App.
259, 261 (1994)). Similarly, “[i]f a service-connected disability causes
another disability to occur,
the appropriate course is to grant secondary service connection and, again,
rate the disabilities
separately.” Id. (citing Libertine v. Brown, 9 Vet.App. 521, 522 (1996)).
Finally, where “a veteran’s overall disability picture establishes something less than total
unemployability, but where the collective impact of a veteran’s disabilities are nonetheless inadequately
represented,” referral for extraschedular consideration is the appropriate course of action.5
Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed. Cir. 2014).
In other words, the Secretary has, through various regulations, created
procedural mechanisms to account for all symptoms and effects arising fromservice-
connected conditions. Mr. Copeland’s attempt to circumvent this statutory and regulatory framework
amounts to little more than a disagreement with how the Secretary has chosen to rate pes planus
and hallux valgus under the Schedule, which is beyond the Court’s authority to review. See 38 U.S.C. § 7252(b) (“The Court may not review the schedule of ratings for disabilities . . . or any action of the Secretary in adopting or revising that schedule.”); see also Previous HitWingardNext Hit, 779 F.3d at 1356–57 (discussing this Court’s inability
to review the schedule of ratings for disabilities).
The Court notes that Mr. Copeland does not challenge the Board’s
determination that referral for
extraschedular consideration was not warranted in this case. R. at 11-12;
see Cromer v. Nicholson, 19 Vet.App. 215,
217 (2005) (“[I]ssues not raised on appeal are considered abandoned.”).
5
6

Although the Board considered whether an increased evaluation was
warranted under DC 5284, its attempt to rate Mr. Copeland’s listed conditions under that DC
was error as a matter of law. See Suttmann, 5 Vet.App. at 134. This error was harmless, however, as the
Board ultimately rated Mr. Copeland under the listed DCs, determining that he was entitled to a
50% disability rating under DC 5276 and that he was not entitled to a compensable evaluation under DC
5280. R. at 9-11; 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) (noting that “the burden of
showing that an error is
harmful normally falls upon the party attacking the agency’s determination
“). The appellant does
not argue that the Board erred when it determined the appropriate
disability ratings under DC 5276
and 5280, nor can the Court discern any deficiency in this analysis.
The Court will, therefore, affirm the Board’s decision. In light of this
outcome, the Court
will not address the appellant’s remaining arguments. Although the Court
may one day be called
to resolve those matters in the context of an unlisted condition rated by
analogy, they are not
implicated in the instant decision.
IV. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and
the parties’ pleadings, the Board’s February 26, 2014, decision is AFFIRMED.
GREENBERG, Judge, dissenting: I dissent. Because I believe DC 5284 is
directly applicable to
theappellant’scombineddisability,whichincludespesplanusandhallux valgus,
the majority cannot
describe compensating the appellant under DC 5284 as “rating by analogy.”
DC 5284 is labeled “Foot injuries, other.” While one reading of this DC
appears to limit
compensation to a foot injury, the word “other” is not superfluous. The
remainder of the diagnostic
codes that pertain to the feet compensate foot conditions and not injuries.
See 38 C.F.R. § 4.72, DC
5276-5283. When read naturally with the rest of the rating schedule, the
term “injuries, other”
clearly suggests that DC 5284 is a broader diagnostic code for feet.
See FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“The meaning—or
ambiguity—of certain
words or phrases may only become evident when placed in context.”).
7

The majority holds that “there are already safeguards in place to
compensate a veteran . . .
for the combined effects of multiple service-connected disabilities.” Ante
at 6. But, Tropf v
Nicholson, 20 Vet.App. 317 (2006), is cited for the proposition that when
a single injury has
multiple manifestations, the appropriate action is to recognize the
disabilities separately and
combine the rating. The appellant suffers from multiple service-connected
conditions that, when
working against each other create a combined disability that is different
from either condition
individually. To the extent that the majority suggests that referral for
extraschedular consideration
is appropriate here, I believe DC 5284 sufficiently contemplates the
appellant’s disability picture.
See Thun v. Peake, 22 Vet.App. 111 (2008), aff’d sub nom. Thun v. Shinseki,
572 F.3d 1366 (Fed.
Cir. 2009). There is no need to require the appellant to satisfy the
additional burden of establishing
that his combined disability has caused suchrelated factors as marked
interference with employment
or frequent periods of hospitalization where the rating schedule can
adequately compensate the
appellant. See id.
Moreover, VA has the duty to maximize benefits and merely compensating an
appellant for
all of the manifestations of his disability does not fully satisfy this
obligation. See AB v. Brown,
6 Vet.App. 35, 38 (1993). VA must award the highest benefit allowed
because this is what a veteran
is presumed to be seeking. Id. Here that would be compensating the
appellant under DC 5284.
The appellant’s unique factual circumstances illustrate the possibility of
compensating the appellant
under both the DCs that specifically address his conditions (DCs 5276 and
5280) and the broader
DC 5284.
Nothing in the rating schedule prevents a disability from being
appropriately
compensated under multiple diagnostic codes, and the majority’s implicit
suggestion that a disability
listed in the rating schedule can only be rated under its listed DC, when
other provisions exist,
comes dangerously close to the Court reviewing the schedule of ratings for
disabilities. We cannot,
as a matter of law, question, but can only interpret, the secretary’s
adoption of DC 5284 as an
alternative means to compensate a veteran. See Previous HitWingardNext Document v. Mcdonald, 779 F.
3d 1354, 1356-57
(Fed. Cir. 2015).
This is not a rating by analogy case. Nowhere in the decision by the Board
does the word
analogy or its concept appear. See R. at 3-16. Rather, the Board was
appropriately considering DC
5284 as applying directly to the appellant’s condition and, but for a
mathematical error by the Board,
8

the appellant would have received a higher rating under DC 5284 which
would be a favorable
finding protected by the Court. See Medrano v. Nicholson, 21 Vet.App. 165,
170 (2007).
The appellant, a veteran of the army of occupation in Germany, at advanced
age is struggling
to be appropriately compensated by reason of ambiguous language in a
regulation. We should take
care, in these situations, to resolve matters as fully as possible in
favor of the veteran. Because I
believe the majority has incorrectly applied this regulation to the facts
found, I respectfully dissent.
9

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