Veteranclaims’s Blog

February 22, 2018

Single Judge Application; plantar fasciitis; DC 5284, operates as a catch-all provision; Petitti v. McDonald, 27 Vet.App. 415, 427 (2015); restrict evidence to ‘objective’ evidence;

Excerpt from decision below:

” The particular diagnostic code applied here, DC 5284, operates as a catch-all provision and, as such, does not describe or list specific symptoms. Instead it simply assigns a 10% rating for “moderate” injuries; 20% for “moderately severe” injuries; and 30% for “severe” injuries, without defining these gradations.

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“A regulation that “does not speak to the type of evidence required . . . certainly does not, by its own terms, restrict evidence to ‘objective’ evidence.” Petitti v. McDonald, 27 Vet.App. 415, 427 (2015). As such, requiring objective evidence in this instance would fit squarely in the prohibition against considering factors outside the rating criteria. See Massey v. Brown, 7 Vet.App. 204, 208 (1994). The law is clear, but the Board’s explanation is not. It does not indicate whether Mr. Hinkson was subjected to a higher evidentiary burden.
It’s obvious from the record that the Board captured all the subjective evidence favorable to Mr. Hinkson. It’s also clear that no objective symptoms were recorded. What remains hidden is whether the Board denied a higher rating because (a) the subjective evidence presented did not meet the threshold for a higher rating level, or (b) there was no objective evidence—a standard found nowhere in the sixteen-word rating code. The parties’ competing interpretations of the Board decision illustrate the uncertainty.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0116
WINDELL B. HINKSON, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Windell Hinkson spent a career in the Navy and now suffers from, among other things, plantar fasciitis. The question that separates the parties is not whether he has it or whether it’s service connected, but merely the degree to which his symptoms affect him. The Court can’t tell; the Board didn’t explain; and the rating code doesn’t help.

I. FACTS
Mr. Hinkson served in the Navy on active duty from 1988 until he retired in 2008. The
parties generally agree as to the state of his condition. Standing and walking for just a few hours
causes him pain, as well as a lack of endurance and fatigue. He has significant tenderness over his
bilateral heels and mid-foot region. He describes the pain as a burning sensation that is generally
worse in the morning or after prolonged use of his feet. He wears orthotics (shoe inserts) and ices
his feet, both of which seem to mitigate the pain. His morning routine of stretching and moving
his feet about before getting out of bed helps as well. He’s had this condition since service.
Before retiring, Mr. Hinkson submitted a claim for bilateral plantar fasciitis, which was
granted and assigned a non-compensable rating. He contested the rating and, after a Board hearing,
underwent a new VA medical examination in 2015. In the decision now on appeal, the Board
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recounted the symptoms and evidence described above. It also pointed out that he reported chronic
pain to the VA examiner, but no objective symptoms were documented in the medical opinion.
The Board determined that his condition was moderate in degree and awarded him a 10% disability
rating for each foot under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284 (“Foot injuries, other”).1
II. ANALYSIS
The issues in this case center primarily on the Board’s limited explanation for why it found Mr. Hinkson’s symptoms to be “moderate.” The particular diagnostic code applied here, DC 5284, operates as a catch-all provision and, as such, does not describe or list specific symptoms. Instead it simply assigns a 10% rating for “moderate” injuries; 20% for “moderately severe” injuries; and 30% for “severe” injuries, without defining these gradations. The only other language contained in the rating code is an instruction to assign a 40% rating if there is actual loss of use of a foot. The rating code’s simplicity facilitates its catch-all function, but it stands to follow that thin explanations can generate questions and the appearance of an arbitrary rating. Thus, the natural tradeoff for the increased utility would seem to be a heightened requirement to provide a full explanation for choosing one rating over another.

A. Did the Board require objective evidence?
Mr. Hinkson first alleges that the Board improperly required objective evidence to warrant a higher rating and, in doing so, discounted favorable subjective evidence. He first points out that the Board included in its recitation of the evidence that the VA examiner did not document any objective symptoms. The Board did make this brief observation, but it was a relatively isolated statement with no immediate context or discussion signaling just how important “objective symptoms” were to its decision.
This fact came up again, though, this time at a more critical juncture—the Board’s
conclusion. Mr. Hinkson was not found to be entitled to a higher rating because “the medical evidence does not show and the Veteran does not contend that his symptoms of plantar fasciitis of either foot have been moderately-severe. As noted above, the April 2015 examiner found no
1 The Board’s decision also denied service connection for Hepatitis A; a bilateral hand disability; hypertension with constipation and erectile dysfunction; a right eye cataract; and hemorrhoids. Mr. Hinkson does not challenge this determination; the appeal as to these matters is dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281–86 (2015) (en banc). The Board also remanded the issue of TDIU. The Court lacks jurisdiction to review remanded matters and so does not address this issue. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); 38 C.F.R. § 20.1100(b) (2017).
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objective symptoms.” R. at 17 (emphasis added). Mr. Hinkson believes this phrasing indicates that the Board implicitly read into DC 5284 an objective evidence requirement, preventing him from obtaining a higher rating based on the subjective evidence at hand.
For his part, the Secretary suggests a different reading, arguing that the Board based its decision on Mr. Hinkson’s subjective evidence when it said his “reported pain and the impact of the pain on [his] functional abilities, such as walking and standing” represent symptoms that are moderate in degree. R. at 16. Per the Secretary, the collective evidence consisted entirely of subjective evidence; the Board was simply affirming that the VA examiner had nothing to add by
way of objective evidence that could contribute to a higher rating for the veteran.
A regulation that “does not speak to the type of evidence required . . . certainly does not, by its own terms, restrict evidence to ‘objective’ evidence.” Petitti v. McDonald, 27 Vet.App. 415, 427 (2015). As such, requiring objective evidence in this instance would fit squarely in the prohibition against considering factors outside the rating criteria. See Massey v. Brown, 7 Vet.App. 204, 208 (1994). The law is clear, but the Board’s explanation is not. It does not indicate whether Mr. Hinkson was subjected to a higher evidentiary burden.
It’s obvious from the record that the Board captured all the subjective evidence favorable to Mr. Hinkson. It’s also clear that no objective symptoms were recorded. What remains hidden is whether the Board denied a higher rating because (a) the subjective evidence presented did not meet the threshold for a higher rating level, or (b) there was no objective evidence—a standard found nowhere in the sixteen-word rating code. The parties’ competing interpretations of the Board decision illustrate the uncertainty.
Further, it is not as if the Board offered a thorough explanation that still yielded ambiguity.
On the contrary, the Board’s explanation amounted to a mere recitation of symptoms and evidence
followed by an unreasoned conclusion. There was no explanation for why exactly Mr. Hinkson’s
symptoms were “moderate”, as opposed to “moderately severe” or “severe.” The mere listing of
evidence without any explanation of the standards employed is unacceptable and frustrates judicial
review. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007); D’Aries v. Peake, 22 Vet.App. 97,
107 (2008) (reasons and bases must enable claimant to understand precise basis for decision and
facilitate review in this Court).
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B. What is “moderate” anyways?
Mr. Hinkson adds a layer to his previous argument by saying that asking the Board to
provide a more reasoned analysis for why it assigned a “moderate” rating is a futile exercise given
the rating code’s indiscernible standards. He says the absence of definitions in DC 5284 prevents
meaningful advocacy for a higher rating as well as any standard against which the facts of a
veteran’s case can be assessed. He cites a recent case from this Court, Cantrell v. Shulkin, 28
Vet.App. 382 (2017), which dealt with the frustrating effect of a purposely ambiguous term of art
on this Court’s review.
To be sure, the language in DC 5284 is sparse. But unlike this case, this type of issue was
ripe for the Court to address in Cantrell. The Court faced the question head-on because the
Secretary took a firm position that he was unwilling as a matter of policy to draw clear lines for
what constituted a “protected environment”; it was “ambiguity-by-design.” Id. at 390. Put another
way, it was evident that the Board was making its decision using an indiscernible standard. Thus,
the Court in Cantrell was in a position to state that it couldn’t “sanction a statement of reasons or
bases that amounts to . . . ‘because I say so.'” Id. at 392.
Here, the Board offered no explanation for why it chose “moderate.” Not knowing the basis
of the Board’s decision prevents the Court from pinpointing the Secretary’s rating code as the
source of the problem. More importantly, it’s not necessary to tackle the issue in this case. This
Court has routinely declined to presume that no standard exists or to attempt to define terms
without first allowing the Secretary the opportunity to do so. See, e.g., Ortiz-Valles v. McDonald,
28 Vet.App. 65, 72 (2016). On remand, the Board will have another opportunity to demonstrate
(or not) that it can clearly spell out the standards used to assign a rating under DC 5284.
C. Did the medical examiner do enough?
Mr. Hinkson also argues that the Board relied on an inadequate medical examination and
failed to provide adequate reasons and bases for why it found the opinion adequate. The disability
questionnaire for plantar fasciitis requires an explanation if the examiner finds that the veteran
suffers pain but the pain does not cause functional loss. The examiner noted the presence of pain
but indicated that there was no associated functional loss. Despite the questionnaire’s prompt, he
failed to offer an explanation. Mr. Hinkson says the Board should have returned the report as
inadequate for rating purposes because it did not contain sufficient detail. 38 C.F.R. § 4.2 (2017).
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He makes no attempt, however, to reconcile his argument with the fact that the examiner
noted upfront that Mr. Hinkson “denies any functional limitations.” R. at 110. He denied flare-ups
of symptoms, impaired functioning, and all symptoms other than pain. To fault the examiner for
not explaining the absence of functional limitation in a case where the veteran denies having
functional limitation is incongruous. The adequacy of a medical opinion is a question of fact
reviewed for clear error. D’Aries, 22 Vet.App. at 104. Clear error is present when the Court is left
with a “definite and firm conviction” that a mistake has been made, Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990), and that isn’t the case here. Similarly, Mr. Hinkson has not demonstrated
that any shortcomings in the Board’s reasons and bases for relying on the exam prejudiced him.
See Overton v. Nicholson, 20 Vet.App. 427, 435 (2006) (veteran’s burden to show error and
resulting prejudice).
III. CONCLUSION
For the foregoing reasons, the Court VACATES the December 15, 2016, decision and
REMANDS the matter for further proceedings consistent with this decision.
DATED: February 21, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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