Veteranclaims’s Blog

April 9, 2013

Single Judge Application; Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011); Hood v. Brown, 4 Vet.App. 301, 302 (1993); Duty to Explain Why Evidence Does Not Meet Listed Criteria

Excerpt from decision below:

“But this “Court has long held that merely listing the evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)). Instead, “[t]he 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). This would seem to be especially true in the case of DCs like DC 5284 where terms like “moderately severe” and “severe” are not self-defining and the provision does not provide any guidance or list any symptoms falling under either category. See, e.g., Hood v. Brown, 4 Vet.App. 301, 302 (1993) (holding that “the Board did not provide reasons or bases to explain why appellant’s impairment is ‘definite’ and not ‘considerable,’ ‘severe,’ or ‘total,'” and remanding the matter “for the Board to explain why appellant’s symptoms do not fit the criteria for a higher rating”). In such circumstances, an adequate explanation from the Board why certain evidence does not meet the criteria listed in the disability evaluation level sought is critical to help claimants understand the Board’s decision and to permit this Court to review it. See Gilbert, supra.
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“Finally, the Board failed to discuss the applicability of 38 C.F.R. §§ 4.40 and 4.45 (2012) and their potential effect on Ms. Williams’s disability evaluation. See Fenderson v. West, 12 Vet.App. 119, 128 (1999) (holding that “evidence of pain on movement and functional disability due to pain” from plantar fasciitis “requires explicit consideration under 38 C.F.R. §§ 4.40 and 4.45“); VA Gen. Coun. Prec. 9-98 (Aug. 14, 1998) (holding that, “[d]epending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under sections 4.40 and 4.45” of title 38); see also R. at 60-62 (veteran’s assertions that she experiences swelling, hotness,
redness, stiffness, fatigability, weakness, and lack of endurance in both feet while standing, walking, and at rest, as well as flareups that occurr at least once a week, last for about an hour, and make walking and arising from a sitting position even more difficult).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0546
CANDY V. WILLIAMS, 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 Candy V. Williams appeals, through counsel, from a December 22, 2011, decision of the Board of Veterans’ Appeals (Board), which denied entitlement to initial disability evaluations in excess of 20% for service-connected right and left foot plantar fasciitis.1 Record (R.) at 3-13. 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 reasons set forth below, the Court will set aside the December 2011 Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS
Ms. Williams served on active duty in the U.S. Navy from February 1995 to May 2007. R. at 570. While in service, she sustained injuries to her feet and was diagnosed with bilateral plantar
1 The Board remanded to the VA regional office the issue whether referral of the case for an extraschedular
evaluation is warranted under 38 C.F.R. § 3.321 (2012). Record at 11-13. The Court does not have jurisdiction over this issue. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).

fasciitis. R. at 485. 2 She underwent surgery on both feet in April 2005, but the pain did not abate.Id.
In May 2007, Ms. Williams filed a claim for disability compensation, seeking service connection for, inter alia, plantar fasciitis in both feet. R. at 462, 537-52. She underwent a VA examination in July 2007. R. at 481-93. During this examination, Ms. Williams complained of “bilateral plantar heel pain whenever she is on her feet, [which is] severe every day.” R. at 485. She described wearing foot splints at night and inserts in her shoes. R. at 486. Because she was “not able to stand or walk very long due to foot pain,” Ms. Williams had to give up her job as a “sports specialist” because the position required too much walking and standing. Id. She was unable to walk farther than one block or stand longer than 20 minutes. Id.
In a September 2007 rating decision, the VA regional office (RO) granted, inter alia, service connection for right and left foot plantar fasciitis, each with a disability evaluation of 10% effective May 8, 2007. R. at 454-71. Because the rating schedule does not deal specifically with plantar fasciitis, Ms. Williams’s condition was evaluated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284 (2012), which assesses “[f]oot injuries” and provides 10%, 20%, and 30%
evaluations for moderate, moderately severe, and severe injuries, respectively.
Ms. Williams filed a Notice of Disagreement as to the evaluations assigned for plantar fasciitis, arguing that her symptoms were more severe than those evaluations suggested. R. at 424-25. She detailed her difficulty in procuring work that did not entail the kind of standing and ambulation that her condition prevented. Id. The RO continued its award of 10% per foot, and Ms.
Williams appealed to the Board. R. at 365-66, 393-414. On her Substantive Appeal form, the veteran asserted that she experienced “flare patterns” and “severe pain” when on her feet for prolonged periods. R. at 365. She further contended that VA failed to consider the “functional impairment caused by pain during periods of flare-up,” which hampered her attempts to find gainful employment. R. at 366.

2 “Plantar fasciitis” is an “inflammation of the thick tissue on the bottom of the foot. . . . called the plantar
fascia[,which] . . . . connects the heel bone to the toes and creates the arch of the foot.” Plantar fasciitis, National Library
of Medicine, National Institutes of Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0004438/ (last visited Feb.
28, 2013). The most common symptoms of plantar fasciitis are pain and stiffness in the bottom of the heel, making
walking difficult. Id.
2

The veteran underwent her most recent VA examination in June 2010. She complained of
“very sharp intermittent pain in both feet (heels and arches) . . . whether she is on her feet or not” but
also reported that “walking makes her symptoms worse.” R. at 60. She was unable to walk more
than a few yards before having to stop and lean on something. R. at 62. In addition to pain, Ms.
Williams told the examiner she experienced swelling, hotness, redness, stiffness, fatigability,
weakness, and lack of endurance in both feet while standing, walking, and at rest. R. at 60-62.
Flareups occurred at least once a week, lasting for about an hour, during which time her symptoms
were exacerbated, and walking and arising from a sitting position became even more difficult. For
assistive devices, Ms. Williams used orthotic inserts in her shoes, a cane to ambulate, and nighttime
braces for her feet, all of which offered little relief. R. at 60, 62. Severe tenderness in her heels
caused the veteran to bear weight only on the balls of her feet and gave her an antalgic gait.3 R. at
63. The examiner reported the effect of the veteran’s bilateral plantar fasciitis on 12 daily activities.
The condition caused no problems with traveling, feeding, dressing, grooming, or driving; mild
problems with bathing; moderate problems with chores; severe problems with shopping and
toileting; and prevented exercising, sports, and recreation. R. at 68. Finally, the examiner noted that
Ms. Williams had been unemployed since May 2007, having left her job as a sport representative
because the walking and activity required exacerbated her plantar fasciitis, and because she needed
to care for her ailing father. R. at 67. The RO continued its earlier evaluation of 10% for each foot
(R. at 52-56), and Ms. Williams perfected an appeal to the Board.
The Board issued the decision currently on appeal on December 22, 2011. The Board granted
Ms. Williams’s claims for increased initial evaluations of left and right foot plantar fasciitis, finding
that these conditions “more nearly approximate[d]” an evaluation of 20%, i.e., that they were
“moderately severe.” R. at 7-11. In reaching this conclusion, the Board relied on the June 2010
examiner’s findings that plantar fasciitis had “a moderate impact on her ability to do chores, . . . a
mild impact on bathing, . . . a severe impact on shopping and toileting, and prevent[ed] exercise,
sports, and recreation,” as well as the findings that Ms. Williams had decreased mobility, weakness,
3 An “antalgic gait” is “a limp adopted so as to avoid pain on weight-bearing structures (as in hip injuries),
characterized by a very short stance phase,” i.e., “that part of the gait cycle in which the foot is in contact with the floor
and the leg bears the body weight, comprising heel strike, mid stance, and push-off.” DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 753, 1428 (32d ed. 2012).
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and strength as a result of her disability. R. at 9; see R. at 60-62. The Board further found, based
on Ms. Williams’s unemployment history, that the record reasonably raised the issue of
extraschedular evaluation and remanded the issue to the RO for additional development and
consideration whether referral for extraschedular evaluation was warranted. R. at 11-13. This
appeal followed.
II. ANALYSIS
Notwithstanding the Board’s award of a higher disability evaluation of 20% in this case, Ms.
Williams’s appeal is proper because an individual presenting a claim for an increased evaluation is
presumed to be seeking the highest possible evaluation. Floyd v. Brown, 9 Vet.App. 88, 102 (1996).
The assignment of a disability evaluation is a factual finding that the Court reviews under the
“clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Johnston v. Brown, 10 Vet.App.
80, 84 (1997). “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. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). This Court may not substitute its judgment
for the factual determinations of the Board on issues of material fact merely because the Court would
have decided those issues differently in the first instance. See id. As with any finding on an issue
of material fact and law presented on the record, the Board is required to support its assignment of
disability evaluations with a statement of reasons or bases that enables a claimant to understand the
precise basis for the Board’s decision and facilitates review in this Court. See 38 U.S.C.
§ 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
As noted above, DC 5284 provides that “foot injuries, other” warrant a 20% evaluation if
“moderately severe” or a 30% evaluation if “severe.” Ms. Williams argues that the Board failed to
provide an adequate statement of reasons or bases for not assigning higher initial disability
evaluations for her right and left foot conditions, i.e., 30%. Appellant’s Brief (Br.) at 5-8. The Court
agrees.
In this case, the Board’s explanation that a “severe,” 30% evaluation for each foot was not
warranted was as follows: “[T]he evidence does not indicate that the [v]eteran’s disability is of a
4
severe nature. Looking at the disability as a whole, it has not caused interference with her daily activities of grooming, dressing, driving, or traveling.” R. at 9-10. But this “Court has long held that merely listing the evidence before stating a conclusion does not constitute an adequate statement of
reasons and bases.” Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)). Instead, “[t]he 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). This would seem to be especially true in the case of DCs like DC 5284 where terms like “moderately severe” and “severe” are not self-defining and the provision does not provide any guidance or list any symptoms falling under either category. See, e.g., Hood v. Brown, 4 Vet.App. 301, 302 (1993) (holding that “the Board did not provide reasons or bases to explain why appellant’s impairment is ‘definite’ and not ‘considerable,’ ‘severe,’ or ‘total,'” and remanding the matter “for the Board to explain why appellant’s symptoms do not fit the criteria for a higher rating”). In such circumstances, an adequate explanation from the Board why certain evidence does not meet the criteria listed in the disability evaluation level sought is critical to help claimants understand the Board’s decision and to permit this Court to review it. See Gilbert, supra.

Here, the Board merely listed four “daily activities” compiled from the June 2010 VA examination—grooming, dressing, driving, and traveling—with which plantar fasciitis did “not cause[ ] interference” and used this fact to find that 30% evaluations were not warranted. R. at 10; see R. at 68; see also Appellant’s Br. at 6. However, in discussing whether her conditions warranted 30% evaluations, the Board did not address the fact that according to the June 2010 examiner Ms. Williams’s disability affected, sometimes severely, or completely prevented, her functioning in seven other areas of daily living: chores, shopping, exercise, sports, recreation, bathing, and toileting. R at 68. Thus, the Board failed to acknowledge that from a quantitative perspective plantar fasciitis affected more daily activities than not; the veteran was severely restricted or completely prevented from engaging in five of those activities. In addition, the Board did not appear to consider the qualitative effect that greater debilitation in certain daily activities might have on Ms. Williams’s overall disability condition. For example, she reported during her June 2010 VA examination that
5

she was unable to walk more than a few yards before having to stop and lean on something, and that assistive devices did not alleviate her pain. R. at 60, 62.
Ms. Williams further argues that the Board did not properly consider her employment history.
Appellant’s Br. at 7. The Board acknowledged the effect of plantar fasciitis on Ms. Williams’s employment and remanded to the RO the issue of extraschedular evaluation (R. at 11-13), but the Court agrees with the veteran that the Board did not discuss the relevance of this effect in the context of determining whether her bilateral foot disabilities were “severe.” This renders the Board’s statement of reasons or bases deficient. See Rice v. Shinseki, 22 Vet.App. 447, 452 (2009) (noting that, “the rating schedule is based on the average impairment in earning capacity caused by a
disability” (internal quotation marks omitted)); 38 C.F.R. § 4.1 (2012).
Finally, the Board failed to discuss the applicability of 38 C.F.R. §§ 4.40 and 4.45 (2012) and their potential effect on Ms. Williams’s disability evaluation. See Fenderson v. West, 12 Vet.App. 119, 128 (1999) (holding that “evidence of pain on movement and functional disability due to pain” from plantar fasciitis “requires explicit consideration under 38 C.F.R. §§ 4.40 and 4.45”); VA Gen. Coun. Prec. 9-98 (Aug. 14, 1998) (holding that, “[d]epending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under sections 4.40 and 4.45” of title 38); see also R. at 60-62 (veteran’s assertions that she experiences swelling, hotness,
redness, stiffness, fatigability, weakness, and lack of endurance in both feet while standing, walking, and at rest, as well as flareups that occurr at least once a week, last for about an hour, and make walking and arising from a sitting position even more difficult).

The Court notes that the Board, “[f]or comparison purposes,” consulted the symptoms necessary for a 30% evaluation per foot under 38 C.F.R. § 4.71a, DC 5276 (acquired flatfoot). R. at 10. DC 5276 provides for a 30% evaluation for a flatfoot when “marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement[,] and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances,” are present.
However, the Board did not explain how its consultation of DC 5276 helped it determine that Ms. Williams’s plantar fasciitis evaluated under DC 5284 was “moderately severe” but not “severe.” DC 5276 does not appear to account for all Ms. Williams’s symptoms, such as fatigability, weakness, pain, stiffness, and lack of endurance, which are not relieved by orthotics. R. at 61. To the extent
6

the Board was suggesting that the veteran’s symptoms would need to approximate those listed in DC
5276 for pronounced flatfoot to qualify for a “severe” evaluation under DC 5284, this would render
the Board’s evaluation under DC 5284 superfluous. See Green v. West, 11 Vet. App. 472, 476 (1998)
(holding that once VA assigns an analogous DC, VA must use rating criteria of that analogous rating
to evaluate condition); Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992) (“Shifting diagnostic
codes throughout the adjudication process, while perhaps harmless with regard to the decision
reached, may create confusion as to the standards and criteria employed in evaluating the claim.”).
Overall, the Board’s discussion is insufficient to enable the veteran to understand the basis
for its decision and frustrates review by this Court. See Gilbert, supra. Thus, because the Board
failed to explain adequately why Ms. Williams’s left and right foot plantar fasciitis did not qualify
as “severe” under DC 5284, and because this failure was prejudicial, see Winters v. Gober, 219 F.3d
1375, 1380 (Fed. Cir. 2000) (“[T]he rule of harmless error cannot be invoked to allow the Court of
Appeals for Veterans Claims to decide a matter that is assigned by statute to VA for the initial
determination.”), the Court will set aside the decision and remand the claim. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (“[W]here 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, a remand is the appropriate remedy.”). Ms. Williams is free to present any additional
argument and evidence to the Board 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.

III. CONCLUSION
Upon consideration of the foregoing, the December 22, 2011, Board decision is SET ASIDE,
and the matter is REMANDED for readjudication consistent with this decision.
DATED: April 5, 2013
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Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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