Veteranclaims’s Blog

January 18, 2022

Single Judge Application; Burton v. Shinseki; VA Fast Letter 04–22; Section 4.59 announces VA’s intention that the Rating Schedule “recognize[s] painful motion with joint or periarticular pathology as productive of disability . . . entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59 (2019); see Burton v. Shinseki, 25 Vet.App. 1, 3–5 (2011) (noting the Secretary’s position that § 4.59 is not limited to the arthritis context); VA Fast Letter 04–22 (Oct. 1, 2004)(same);

Filed under: Uncategorized — Tags: — veteranclaims @ 10:56 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6495
ULYSSES D. BRINSON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Ulysses D. Brinson appeals through counsel an August
27, 2018, Board of Veterans’ Appeals (Board) decision denying a disability evaluation in excess
of 10% for bilateral heel spurs, a compensable evaluation for right foot bunions, a compensable
evaluation for left foot bunions prior to March 13, 2013, and an evaluation in excess of 10% for
left foot bunions since May 1, 2013. Record (R.) at 4-13.1 For the reasons that follow, the Court
will set aside the August 2018 Board decision and remand those matters for further development
and readjudication consistent with this decision.
I. FACTS
Mr. Brinson served on active duty in the U.S. Marine Corps from August 1979 to August

  1. R. at 1292, 2236. He filed a claim for service connection for bilateral heel spurs and bilateral
    bunions in October 1999. R. at 2687. A February 2000 VA regional office (RO) rating decision
    1 In the same decision, the Board remanded the issues of entitlement to increased evaluations for dermatitis
    and left ulnar neuropathy. R. at 11-12. Because a remand is not a final decision of the Board subject to judicial
    review, the Court does not have jurisdiction to consider these issues at this time. See Howard v. Gober, 220 F.3d
    1341, 1334 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. §
    20.1100(b) (2019).
    2
    granted service connection for bilateral heel spurs with a 10% initial evaluation and bilateral
    bunions with a noncompensable initial evaluation. R. at 2665. He did not appeal and that decision
    became final.
    In October 2010, Mr. Brinson’s Pensacola Naval Hospital treatment records showed left
    foot pain with mild to moderate hallux valgus2 and intermetatarsal neuroma treated with a nerve
    block injection. R. at 1155-57. He filed a claim for increased evaluations in November 2011,
    reporting ongoing treatment at the Pensacola Naval Hospital. R. at 2472.
    A December 2011 VA examination included X-rays showing advanced hallux valgus
    deformities bilaterally. R. at 1719. The examiner noted a November 2007 diagnosis of hallux
    valgus, a December 2011 diagnosis of pes cavus, and longstanding heel spurs, R. at 1720-21, but
    characterized the hallux valgus as mild or moderate, R. at 1722. Mr. Brinson reported ongoing
    treatment for heel spurs and bunions with cortisone injections and that he uses shoe inserts. R. at
    1721, 1726. The examiner diagnosed bilateral heel spurs and bunions, each characterized as mild,
    but found no Morton’s neuroma, metatarsalgia, hammertoes, hallux rigidus, or other foot injuries.
    R. at 1719, 1721-24. The examiner described bunions on each great toe, the left worse than the
    right, and obvious clawing of the second and third digits with pronounced verus valgus of the first
    digit, the left worse than the right. R. 1725. The examiner finally noted mild functional limitations
    without functional impact on Mr. Brinson’s ability to work. R. at 1727.
    The RO continued the 10% evaluation for heel spurs and noncompensable evaluation for
    bunions in an April 2012 rating decision, R. at 2227, and Mr. Brinson appealed in May 2012, R.
    at 1821, 2215. His Pensacola Naval Hospital treatment records show left foot intermetatarsal
    neuroma, hallux valgus, and soft tissue foot pain in June 2012. R. at 907. He underwent a left
    foot bunionectomy and arthroplasty in March 2013. R. at 1905-08.3
    At a July 2013 VA examination, the examiner reviewed the March 2013 left bunionectomy
    and noted bony spur formation, mild hammertoes deformities, and plantar calcaneal spur. R. at
  2. The examiner diagnosed hammertoes deformities of the left second, third, and fourth toes
    and asymptomatic hallux valgus deformities. R. at 1697-98. The examiner found no other foot
    2 “Hallux valgus,” commonly referred to as a “bunion,” is an “angulation of the great toe away from the
    midline of the body, or toward the other toes.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 818 (32d ed. 2012).
    3 In November 2014, he was assigned a temporary total evaluation for left foot bunions related to that surgery,
    from March 15, 2013, to May 1, 2013. R. at 1237.
    3
    conditions and reported no impact on Mr. Brinson’s ability to work. R. at 1699-1701, 1704. The
    examiner noted a normal gait and recorded Mr. Brinson’s refusal to attempt heel or toe walking
    due to fear of increased pain. R. at 1704.
    In a January 2014 statement, Mr. Brinson reported ongoing pain, numbness, tingling, a
    limp, and inability to stand for prolonged periods of time. R. at 1821. The March 2014 Pensacola
    Naval Hospital treatment records show hallux valgus of the left foot, soft tissue foot pain, and
    bunion. R. at 1187. In March 2015, Mr. Brinson had surgery for right foot plantar fasciitis. R. at
    296.4 Mr. Brinson described the surgery as heel spur removal to an April 2015 VA examiner, who
    also noted the March 2013 left foot bunionectomy. R. at 306.
    The April 2015 examination included X-rays showing right foot hallux valgus with plantar
    calcaneal spur formation and left foot hallux valgus with spur formation. R. at 307, 322. The
    examiner diagnosed bilateral hallux valgus and calcaneal spurs, but found no functional limitation
    caused by either condition. R. at 308, 318-19. The examiner noted no other foot condition. R. at
    319-20. Mr. Brinson described right foot pain to the examiner, who opined that the pain does not
    cause functional loss. R. at 320. The examiner further found no pain, weakness, fatigability,
    incoordination, or other functional loss during flare-up or on use over time. R. at 321-22.
    In July 2015, the RO issued a rating decision finding clear and unmistakable error in the
    November 2014 rating decision and awarding a 10% evaluation for left foot bunion following
    surgery, effective May 1, 2013. R. at 245-47. In July 2015, the RO also issued a Statement of the
    Case (SOC) continuing his foot evaluations, R. at 214-41, and Mr. Brinson perfected his appeal
    later that month, R. at 168. At a February 2017 Board hearing, he described foot pain, treatment
    with shoe inserts and injections, swelling, and the inability to wear dress shoes. R. at 44-45, 76-
  3. He also related hammertoe deformity on his second, third, and fourth toes to his serviceconnected
    left bunion. R. at 48. He finally reported that he would be beginning occupational
    therapy at the Pensacola Naval Hospital that month. R. at 88.
    In the August 2018 decision on appeal, the Board noted Mr. Brinson’s March 2013 left foot
    bunionectomy, that his left foot bunions are evaluated under 38 C.F.R. § 4.71a, Diagnostic Code
    (DC) 5280 (hallux valgus, unilateral), and that he is already in receipt of the highest possible
    evaluation under that DC following his surgery. R. at 10. For the period prior to his surgery, and
    4 In June 2015, he was assigned a temporary total evaluation for right heel spurs related to that surgery, from
    March 18, 2015, to May 1, 2015. R. at 273.
    4
    for his right foot throughout the appellate period, the Board found no evidence that his bunions
    caused severe impairment equivalent to great toe amputation sufficient to warrant a compensable
    evaluation. Id. As to Mr. Brinson’s bilateral heel spurs, the Board noted that he has been evaluated
    under § 4.71a, DCs 5276 for flat feet and 5284 for other foot injuries, but found no evidence of
    moderate flat feet or moderate foot injury that would entitle him to an increased evaluation under
    those DCs. Id. The Board finally considered other DCs, but concluded that no other DC was more
    appropriate for evaluating either Mr. Brinson’s bunions or heel spurs. R. at 10-11. This appeal
    followed.
    II. JURISDICTION AND STANDARD OF REVIEW
    Mr. Brinson’s appeal is timely and the Court has jurisdiction to review the August 2018
    Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
    appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
    The duty to assist includes providing a medical examination or obtaining a medical opinion
    based upon a review of the evidence of record if VA determines it is necessary to decide the claim.
    38 C.F.R. § 3.159(c)(4) (2019); see 38 U.S.C. § 5103A(d). When the Secretary undertakes to
    provide a veteran with a VA medical examination or opinion, he must ensure that the examination
    or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical
    examination or opinion is adequate “where it is based upon consideration of the veteran’s prior
    medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes
    the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will
    be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and
    “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the
    essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). See also
    Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must rest on
    correct facts and reasoned medical judgment so as [to] inform the Board on a medical question
    and facilitate the Board’s consideration and weighing of the report against any contrary reports.”);
    Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination report must
    contain not only clear conclusions with supporting data, but also a reasoned medical explanation
    connecting the two.”).
    5
    For a VA joints examination to be adequate, the examination must, inter alia, portray the
    extent of functional loss and limitation due to pain and the other factors set forth in 38 C.F.R.
    §§ 4.40 and 4.45, including with use and on flare-up, Mitchell v. Shinseki, 25 Vet.App. 32, 44
    (2011); DeLuca v. Brown, 8 Vet.App. 202, 206-07 (1995); and “wherever possible, include the
    results of the range of motion testing described in the final sentence of [38 C.F.R.] § 4.59,” Correia
    v. MacDonald, 28 Vet.App. 158, 169-70 (2016)—i.e., “on both active and passive motion, in
    weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged
    joint,” 38 C.F.R. § 4.59 (2019).
    The Board’s determinations regarding the adequacy of a medical examination or opinion
    and the appropriate degree of disability are findings of fact subject to the “clearly erroneous”
    standard of review. 38 U.S.C. § 7261(a)(4); see D’Aries v. Peake, 22 Vet.App. 97, 104 (2008);
    Smallwood v. Brown, 10 Vet.App. 93, 97 (1997); see also Ardison, 6 Vet.App. at 407 (holding that
    the Board errs when it relies on an inadequate medical examination). “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)); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (explaining that the Court “is not
    permitted to substitute its judgment for that of the [Board] on issues of material fact” and therefore
    may not overturn the Board’s factual determinations “if there is a ‘plausible’ basis in the record for
    [those] determinations”).
    As with any finding on a material issue of fact and law presented on the record, the Board
    must support its material determinations of fact and law with adequate reasons or bases. 38 U.S.C.
    § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc); Allday v. Brown, 7
    Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57 (1990). To comply with this requirement,
    the Board must analyze the credibility and probative value of evidence, account for evidence it
    finds persuasive or unpersuasive, and provide reasons for rejecting 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). The Board must also address all potentially favorable evidence. See Thompson
    v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order).
    6
    III. ANALYSIS
    A. Evaluations for Left Foot Bunion Prior to March 15, 2013, and Right Foot Bunions
    Mr. Brinson first argues that the Board failed to consider favorable evidence demonstrating
    functional loss in his feet. Appellant’s Brief (Br.) at 11. He specifies that the December 2011
    examiner diagnosed mild or moderate hallux valgus, pes cavus, and heel spurs with mild functional
    limitation; that the July 2013 examiner noted persistent pain due to left foot deformity and the
    inability to perform heel or toe walking due to fear of increased pain; and that the April 2015
    examiner noted bunion pain and right heel pain. Appellant’s Br. at 12-13. Mr. Brinson cites these
    details as evidence of painful symptomatology and disturbance in normal locomotion that the
    Board did not consider as supporting a finding of the equivalent of moderate flat feet under DC
  4. Appellant’s Br. at 13. He similarly argues that the Board overlooked evidence of painful
    symptomatology, including in his testimony at the Board hearing, as favorable evidence potentially
    supporting a compensable evaluation for his bunions based on painful motion. Appellant’s Br. at
    14-15.
    The Secretary agrees that the Board provided an inadequate statement of reasons or bases
    as to the evaluations for left foot bunion prior to March 2013 and for right foot bunion for the
    entire period on appeal. The Secretary explains that the evidence of record contains conflicting
    information as to whether Mr. Brinson has pain due to his bunions, triggering the application of
    38 C.F.R. § 4.59. Secretary’s Br. at 9-10. The Secretary highlights that the Board relied on the
    examination reports reflecting Mr. Brinson’s complaints of pain but relied on the examiners’
    findings that the bunions were asymptomatic to determine that compensable evaluations were not
    warranted, without explicitly determining that the examiners’ determinations are more probative
    than Mr. Brinson’s lay reports of pain. Secretary’s Br. at 9. The Secretary further notes that the
    Board did not consider other record evidence of painful bunions.
    The Court agrees with the parties that the Board provided inadequate reasons or bases to
    support its decision to deny a compensable evaluation for left foot bunion prior to March 2013 and
    for right foot bunions for the entire period on appeal. Section 4.59 announces VA’s intention that the Rating Schedule “recognize[s] painful motion with joint or periarticular pathology as productive of disability . . . entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59 (2019); see Burton v. Shinseki, 25 Vet.App. 1, 3–5 (2011) (noting the Secretary’s position that § 4.59 is not limited to the arthritis context); VA Fast Letter 04–22 (Oct. 1, 2004)
    7
    (same).
    Here, the Board did not discuss that regulation or provide reasons why Mr. Brinson’s
    report of pain did not warrant the minimum compensable rating for the joint. R. at 10-11. Because
    § 4.59 “is applicable to the evaluation of musculoskeletal disabilities involving actually painful,
    unstable, or malaligned joints or periarticular regions,” including the feet, Southall-Norman v.
    McDonald, 28 Vet.App. 346, 354 (2016), the Board was required to address that regulation in
    assessing the veteran’s entitlement to a compensable left foot bunion evaluation prior to March 15,
    2013, and a compensable right foot bunion evaluation for the entire period on appeal. The Board’s
    failure to do so rendered inadequate its reasons or bases for those portions of its decision. See id.;
    Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57.
    B. Evaluations for Left Foot Bunion Since March 15, 2013, and Bilateral Heel Spurs
    As to the left foot bunion evaluation following May 2013, and bilateral heel spurs
    evaluation, Mr. Brinson argues that the Board failed to address evidence of functional loss and
    relied on inadequate examinations that did not comply with the Court’s holding in Correia v.
    McDonald, 28 Vet. App. 158 (2016), and provided inadequate rationales for their conclusions.
    Appellant’s Br. at 6-14. Regarding left foot bunion, the Secretary highlights that Mr. Brinson is
    already in receipt of the highest evaluation for left foot bunion under DC 5280 for that period, cites
    the Board’s finding that different or additional evaluations are not appropriate, and argues that the
    December 2011 and April 2015 VA examiners’ findings as to Mr. Brinson’s functional limitations
    support the Board’s decision to deny increased evaluations. Secretary’s Br. at 17-18. The Secretary
    also disputes the veteran’s argument that the Board provided inadequate reasons or bases for the
    determinations involving heel spurs. He cites the Board’s finding of a lack of evidence of moderate
    flat feet or moderate foot injury supporting increased evaluation under DC 5276 or 5284, and
    argues that Mr. Brinson has not identified any evidence that would justify increased evaluation
    under either DC. Secretary’s Br. at 14.
    Additionally, Mr. Brinson specifies that the Board should have considered separate
    evaluations for claw foot and hammertoes under DCs 5278 and 5282, respectively, in light of the
    December 2011 and July 2013 VA examination reports. Appellant’s Br. at 17. He highlights that
    such manifestations are not contemplated by DCs 5276 for flat feet or 5284 for other foot injuries.
    Appellant’s Br. at 18. The Secretary responds that hammertoes and claw foot are not associated
    with either service-connected bunions and heel spurs and that symptoms attributable to these
    diagnoses were not before the Board. Secretary’s Br. at 15, 18-20. However, the Secretary fails
    8
    to consider that Mr. Brinson argued below, at his February 2017 Board hearing, that hammertoe
    deformities on his second, third, and fourth toes are related to his service-connected left bunion.
    R. at 48; see Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board errs when it
    fails to adequately address all issues expressly raised by the claimant or reasonably raised by the
    evidence of record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
    The Court initially notes that the Secretary is not competent to put forth an argument as to
    which symptoms are manifestations of Mr. Brinson’s service-connected bunions and heel spurs
    and which are not. See Colvin v Derwinski, 1 Vet.App. 171, 172 (1991) (the Board “must consider
    only independent medical evidence to support [its] findings rather than provide [its] own medical
    judgment in the guise of a Board opinion”); Kern v. Brown, 4 Vet.App. 350, 353, (1993) (noting
    that attorneys are generally “not qualified to provide an explanation of the significance of the
    clinical evidence”). The Board makes no specific finding as to the adequacy of the examinations
    of record, but the examination reports do not appear to include opinions regarding whether
    hammertoes or pes cavus are related to Mr. Brinson’s service-connected bunions and heel spurs.
    R. 322, 1688, 1721, 1725-27. The examiners failed to differentiate between what they considered
    to be symptoms of his service-connected conditions and symptoms not related to those serviceconnected
    conditions, and there is no other evidence of record that would assist the Board in
    making such distinctions. See Stefl, 21 Vet.App. at 123. Without such opinions, the Board would
    be forced to impermissibly use its own medical judgment to resolve that issue. Consequently, the
    Court concludes that the record was inadequate to answer this question, and that, to the extent that
    the Board relied on those VA examinations to deny Mr. Brinson’s claims for increased evaluations,
    it clearly erred. See D’Aries, 22 Vet.App. at 104; Ardison, 6 Vet.App. at 407.
    Moreover, it is the obligation of the Board, not the Secretary, to provide adequate reasons
    or bases for its decision, and the Secretary’s attempt to make up for the Board’s deficient analysis
    is nothing more than a post-hoc rationalization that the Court will not accept. See In re Lee, 277
    F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post-hoc
    rationalizations for agency action.'”) (quoting Burlington Truck Lines, Inc. v. United States, 371
    U.S. 156, 168 (1962)); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is
    required to provide a complete statement of reasons or bases, and the Secretary cannot make up
    for its failure to do so.”).
    9
    Here, the December 2011 examiner noted pes cavus, R. at 1721; the July 2013 examiner
    diagnosed hammertoes, R. at 1688, 1697-98; and the April 2015 examiner made no indication of
    any diagnosis for either pes cavus or hammertoes, R. at 319. Yet the Board concluded that no
    other DC would more appropriately address Mr. Brinson’s symptoms without discussing these
    diagnoses or independent medical evidence that these diagnoses are not related to Mr. Brinson’s
    service-connected bunions and heel spurs. See R. at 10-11; see also Mittleider v. West, 11 Vet.App.
    181, 182 (1998) (“[W]hen it is not possible to separate the effects of the [service-connected
    condition and the non-service-connected condition], VA regulations . . . clearly dictate that such
    signs and symptoms be attributed to the service-connected condition.”).
    The Board’s failure to explain why, in light of the evidence of record, it reached the
    conclusion it did renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1);
    Pederson, 27 Vet.App. at 286; Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506; Gilbert,
    1 Vet.App. at 56-57. Consequently, remand of the claims for increased evaluations for left foot
    bunion following March 2013 and heel spurs is warranted. 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”).
    Finally, Mr. Brinson is correct that none of the VA examinations elicited evidence of pain
    on active and passive motion or in weight-bearing and non-weight-bearing modes, in violation of
    Correia. Appellant’s Br. at 7-8. Each examination of record, from December 2011, July 2013,
    and April 2015, predates this Court’s 2016 holding in Correia. The Secretary responds that Mr.
    Brinson failed to identify specific inadequacies of each examination that are prejudicial and to
    explain how another VA examination would lead to increased evaluations. Secretary’s Br. at 14-
  5. However, as further examinations are necessary to address which of Mr. Brinson’s foot
    problems are manifestations of his service-connected conditions, this argument can be addressed
    by the Board on remand. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009).
    Mr. Brinson is free on remand to present any additional arguments and evidence relevant
    to the remanded claims to the Board 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
    10
    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.
    IV. CONCLUSION
    Upon consideration of the foregoing, the August 27, 2018, Board decision is SET ASIDE
    and these matters are REMANDED for further development and readjudication consistent with
    this decision.
    DATED: April 30, 2020
    Copies to:
    Glenn R. Bergmann, Esq.
    VA General Counsel (027)

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