Veteranclaims’s Blog

October 31, 2018

Single Judge Application;Camacho, 21 Vet.App. 360, 366 (2007); sequential rating criteria; 38 C.F.R. § 4.119, DC 7913 (2018); 38 C.F.R. § 4.71a, DC 5276;

Excerpt from decision below:

“The Court concludes that the Board provided an inadequate statement of reasons or bases for finding that the appellant’s pes planus symptoms more closely approximated the 30% rating criteria than the 50% criteria. R. at 7-8; see also 38 U.S.C. § 7104(d)(1) (“Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.”). To the extent the Board asserted that Camacho v. Nicholson dictates that the appellant must have met all four listed criteria to warrant a 50% rating for his bilateral pes planus disability, its argument is misplaced; because Camacho dealt with sequential rating criteria and the rating criteria for pes planus are nonsequential, Camacho’s holding is inapposite here. See 21 Vet.App. 360, 366 (2007); see also R. at 7. Compare 38 C.F.R. § 4.119, DC 7913 (2018), with 38 C.F.R. § 4.71a, DC 5276. Later in its decision, the Board correctly acknowledged that the appellant could obtain a 50% rating if his symptoms more closely approximated those criteria than the criteria for a 30% rating. R. at 7; see also 38 C.F.R. § 4.21 (2018).
However, the Board’s discussion of the appellant’s symptoms is incomplete and inconsistent. The Board conceded that the appellant met the criteria of marked pronation and extreme tenderness of the plantar surfaces. R. at 7; see also 38 C.F.R. § 4.71a, DC 5276. Yet later in its decision, the Board asserted that “[t]he primary symptom that the [appellant] has reported that is included in the 50[%] criteria but not in the 30% criteria is extreme tenderness of the plantar surfaces”; there was no mention of marked pronation. R. at 7. The Board then downplayed the severity of the tenderness, stating that the symptom had been reported inconsistently and unverified by objective measurement. R. at 8. Further, the Board concluded that the appellant “has not identified any medical evidence indicating the presence of” marked inward displacement or severe spasms of the tendo achilles on manipulation. R. at 7. The Board did not mention, however, that a June 2011 VA primary care note described spasms somewhere in the appellant’s feet. R. at 534; see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (finding that the Board must account for and provide the reasons for its rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Given that the Board conceded that the appellant had 2 of the 4 symptoms of a 50% disability rating, it is unclear why his symptomatology did not more nearly approximate the criteria for a 50% rating. Consequently, remand is warranted for the
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Board to provide an adequate statement of reasons or bases justifying its finding. See 38 U.S.C. § 7104(d)(1).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3640
VICTOR R. ANCRUM, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: The appellant, Victor R. Ancrum, appeals through counsel, that part of a June 16, 2017, Board of Veterans’ Appeals decision that denied an initial disability rating in excess of 30% for his service-connected bilateral pes planus.1 Record (R.) at 2-13. The appellant argues that the Board provided an inadequate statement of reasons or bases for finding that the appellant’s pes planus did not approximate the criteria for a 50% rating and relied on inadequate medical examinations. Appellant’s Brief at 4-10. For the following reason the Court will vacate that part of the June 2017 Board decision on appeal and remand the matter for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations such as their widows, is consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real
1 The Board remanded the matter of an initial compensable rating for the service-connected residuals of a left ankle fracture. This matter is not currently before the Court. See Hampton v. Gober, 10 Vet.App. 481, 482 (1997).
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honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional promises to veterans has been of great concern. “By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in the U.S. Army from August 1976 to August 1979 as a medical specialist. R. at 3135 (DD Form 214). Sometime during 1977, the appellant’s feet began to hurt when he walked around performing his duties as a medic. R. at 2866. The appellant underwent a VA examination in June 1980, after which he was diagnosed with third degree bilateral pes planus. R. at 3211-14. The examiner stated that the appellant’s feet were not tender and were “normally supple.” R. at 3213.
In July 2003, the appellant filed for benefits based on service connection for “pain in feet and legs, bilateral.” R. at 3124-34. He underwent a VA examination in April 2008. R. at 2866-71. The examiner noted pain on the plantar aspect of the feet, tenderness of the plantar surface on palpation, marked pronation. R. at 2867-70. These symptoms were not alleviated by insoles. R. at 2866. In August 2008, the regional office (RO) granted service connection for bilateral pes planus with an evaluation of 30%, effective July 3, 2003. R. at 2847-51. An April 2010 VA podiatry note described “pain along plantar aspect of foot intense.” R. at 571. A June 2011 VA primary care note documented bilateral plantar aspect pain and left foot spasms, all of which worsen upon weight bearing. R. at 534. The physician noted that neither orthotics nor injections have improved the symptoms. R. at 534.
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The appellant underwent a VA examination in August 2012. R. at 2197-2200. The examiner, in filling out a Disability Benefits Questionnaire, marked that the appellant had pain on manipulation of his feet and extreme tenderness on the plantar surface of both feet, but had no marked pronation, marked inward displacement, or severe spasms of the Achilles tendon in either foot. R. at 2198-99. The appellant’s symptoms were not relieved by arch supports or a cane. R. at 2198. In a March 2015 decision, the Board granted an effective date of August 4, 1979, for the appellant’s service-connected pes planus. R. at 1192-1218. A May 2015 rating decision assigned a 30% rating as of that date. R. at 952-54.
In June 2017, the Board denied an initial disability rating in excess of 30% for his service-connected bilateral pes planus. R. at 2-13. The Board found that “[g]iving the appellant the benefit of the doubt,” he met 2 of the 4 listed criteria for a 50% rating – marked pronation and extreme tenderness of plantar surfaces. R. at 7; see also 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276 (2018). The Board found, however, that there was no evidence that the appellant met the other two listed criteria, which are “marked inward displacement and severe spasm of the tendo achillis on manipulation.” R. at 7; see also DC 5276. The Board determined that the rating schedule requires that all 4 criteria are met to warrant a 50% rating, and thus that the appellant was only entitled to a 30% rating. R. at 7 (citing Camacho v. Nicholson, 21 Vet.App. 360, 366 (2007)). The Board proceeded to analyze whether the appellant’s symptoms and physical findings more closely approximated the criteria for a 30% or 50% rating, and determined that they more nearly approximated the former. R. at 7-8. It is also important to note that the Board determined that extreme tenderness of the plantar surfaces, which was the symptom “primar[ily] . . . included in the 50[%] criteria but not the 30[%] criteria” had been reported inconsistently and hence “cannot be said [to be of] the severity” needed to warrant a 50% rating during any period on appeal. R. at 7-8. The Board also found that referral for extraschedular consideration was not warranted because the symptoms and impairments caused by the appellant’s pes planus were specifically contemplated by the schedular rating criteria. R. at 9. This appeal ensued.
A 30% rating for bilateral pes planus is warranted where the disability is “severe” and marked by “objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.” 38 C.F.R. § 4.71a, DC 5276. A 50% rating is warranted where the disability is “pronounced,” marked by “marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward
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displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.” Id.
The Court concludes that the Board provided an inadequate statement of reasons or bases for finding that the appellant’s pes planus symptoms more closely approximated the 30% rating criteria than the 50% criteria. R. at 7-8; see also 38 U.S.C. § 7104(d)(1) (“Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.”). To the extent the Board asserted that Camacho v. Nicholson dictates that the appellant must have met all four listed criteria to warrant a 50% rating for his bilateral pes planus disability, its argument is misplaced; because Camacho dealt with sequential rating criteria and the rating criteria for pes planus are nonsequential, Camacho’s holding is inapposite here. See 21 Vet.App. 360, 366 (2007); see also R. at 7. Compare 38 C.F.R. § 4.119, DC 7913 (2018), with 38 C.F.R. § 4.71a, DC 5276. Later in its decision, the Board correctly acknowledged that the appellant could obtain a 50% rating if his symptoms more closely approximated those criteria than the criteria for a 30% rating. R. at 7; see also 38 C.F.R. § 4.21 (2018).
However, the Board’s discussion of the appellant’s symptoms is incomplete and inconsistent. The Board conceded that the appellant met the criteria of marked pronation and extreme tenderness of the plantar surfaces. R. at 7; see also 38 C.F.R. § 4.71a, DC 5276. Yet later in its decision, the Board asserted that “[t]he primary symptom that the [appellant] has reported that is included in the 50[%] criteria but not in the 30% criteria is extreme tenderness of the plantar surfaces”; there was no mention of marked pronation. R. at 7. The Board then downplayed the severity of the tenderness, stating that the symptom had been reported inconsistently and unverified by objective measurement. R. at 8. Further, the Board concluded that the appellant “has not identified any medical evidence indicating the presence of” marked inward displacement or severe spasms of the tendo achilles on manipulation. R. at 7. The Board did not mention, however, that a June 2011 VA primary care note described spasms somewhere in the appellant’s feet. R. at 534; see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (finding that the Board must account for and provide the reasons for its rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Given that the Board conceded that the appellant had 2 of the 4 symptoms of a 50% disability rating, it is unclear why his symptomatology did not more nearly approximate the criteria for a 50% rating. Consequently, remand is warranted for the
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Board to provide an adequate statement of reasons or bases justifying its finding. See 38 U.S.C. § 7104(d)(1).
Because the Court is remanding the appellant’s claim, it will not address the appellant’s remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
For the foregoing reason, the June 16, 2017, Board decision on appeal is VACATED and the matter is REMANDED for readjudication.
DATED: October 30, 2018
Copies to:
Ethan F. Maron, Esq.
VA General Counsel (027)

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