Copeland: "Foot Injuries, Other" Deciphered

Ulysses Copeland v. McDonald, Opinion Number 14-0929, was decided June 25, 2015 and concerns the proper diagnostic code to be applied to bilateral pes planus with hallux valgus. 

The veteran was service connected and granted a rating of 50% for bilateral pes planus with hallux valgus under DC 5276.  The veteran sought separate 30% ratings under DC 5284, which governs “foot injuries, other”, arguing that both DC 5276 and DC 5284 are potentially appropriate diagnostic codes and that DC 5284 is applicable to all foot conditions as a catch all.

The Court rejected the veteran’s position.  It read DC 5284 in the context of other disabilities of the foot and found where a condition is specifically listed in the rating schedule, it should be rated under that code.  It also found that rating it by analogy to DC 5284 was not appropriate. 

Judge Greenberg dissented and wrote that DC 5284 was directly applicable to the veteran’s combined disability.  He read DC 5284 was a broader diagnostic code for foot injuries rather than conditions.  He wrote that “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 for ratings for disabilities.”  Id. at *8.

Decision by J. Lance and J. Schoelen.  Dissent by J. Greenberg.

Wingard: The Veterans Court's Inability to Review the Rating Schedule

Wingard v. McDonald, Opinion Number 11-1214, was decided May 8, 2015 and concerns non-service connected burial benefits under 38 USC Section 2302, but is really instructive as to the Veterans Court’s jurisdiction to review the rating schedule.

The veteran had a hernia that was service connected but given a noncompensable rating.  The veteran’s daughter argued the noncompensable rating was at odds with the actual statute.  She then argued from this position that the requirement for a burial benefit was met because the phrase “in receipt of compensation” should be interpreted to include veterans who are entitled to receive compensation at death. 

In a prior decision, the Veterans Court held the statutory prohibition on judicial review of the content of the rating schedule did not preclude the Court from addressing the argument that the regulations are contrary to the plain and unambiguous language of 38 USC Sections 1110 and 1155.  But, then found the Secretary’s interpretation of the statute was reasonable.  On appeal the Federal Circuit found that 38 USC 7252(b) which discusses the Veteran Court’s jurisdiction prohibited the court from determining whether the rating schedule, by including a 0% disability, violates the statutory constraints.

On remand, the Veterans Court made its displeasure known at the Federal Circuit’s decision.  The Court admits Congress did not want piecemeal challenges to the rating schedule but states  the veteran argued that 38 USC Section 1155 specifically lays out 10 grades of disability beginning at 10% and does not authorize a 0% rating.  “The appellant does not seek to alter the substance of the Secretary’s regulations relating to a particular disability or second guess the Secretary’s absolute discretion to determine what warrants one of the 10 disability ratings authorized by section 1155.  Indeed, what if the Secretary were to adopt a schedule authorize a 15% or 17% disability rating, clearly contrary to the plain language of section 1155?  How could such a blatant violation of the clear wording of the statute be beyond our jurisdiction?”  Id. at *5.  “Thus, respectfully, we see the appellant’s issue not as a substantive challenge to the schedule as conflicting with the statute, but as a charge that the Secretary’s adopted schedule has exceeded the contours of the its enabling statute.”  Id. at *6.  However, the Veterans Court recognized it was bound by the Federal Circuit’s determination that it could not review the issue.

This is an interesting decision in that it both illustrates the fact the Court's cannot meddle with the rating schedule while also explaining clearly why some limited Court involvement is desirable.

Decision by J. Schoelen, joined by CJ Kasold and J. Pietsch.

Da Nang Harbor and bluewater veterans

Gray v. McDonald, Opinion Number 13-3339, was decided April 23, 2015 and concerns the Bluewater designation and whether a veteran who served in the Navy aboard a ship that anchored in Da Nang Harbor is entitled to an Agent Orange Presumption.

The veteran served in the Navy and his ship anchored in Da Nang Harbor.  He was seeking service connection for several ailments that are presumptively linked to Agent Orange.  The veteran argued he should be afforded those presumptions based on his location in Da Nang Harbor.  He argued the VA’s interpretation of Da Nang Harbor as an offshore rather than inland waterway was arbitrary and capricious and the Court held the veteran’s interpretation was inconsistent with the purpose of the regulation and does not reflect the Agency’s fair and considered judgment.

The VA requires actual presence on the landmass or inland waters of Vietnam for a presumption of exposure to Agent Orange.  The issue was whether being anchored in Da Nang Harbor constituted service in inland waters. 

The Court recognized the blue versus brown water distinction created in Hass v. Peake and that an agency’s interpretation of its own regulations is given substantial deference.  The Secretary argued labeling Da Nang Harbor bluewater is a reasonable interpretation of its statute and sought to rely on the adjudication manual, a training letter, and a service bulletin as support.  The Court recognized these documents labeled Da Nang Harbor bluewater, but noted they did not explain the likelihood of herbicide exposure based on spraying but seemed to rely on the fact the harbor is easy to sail into.  The Court stated “Absent a connection to the probability of exposure based on spraying, the Court finds the rationale supporting VA’s designation of Da Nang Harbor is inconsistent with the regulation’s purpose of compensation based on the probability of exposure.”  Id. at *13.  Instead the Court found the documents the VA relied upon are devoid of any indication of a fact-based assessment of the probability of exposure to aerial spraying in Da Nang Harbor and determined the VA’s definition of an inland waterway did not reflect the agency’s fair and considered judgment. 

The Court ultimately did not grant service connection but remanded with the instruction the VA had to reevaluate its definition of inland waterways—specifically Da Nang Harbor—and exercise its fair and considered judgment to define them in a manner consistent with the regulation’s emphasis on the probability of exposure.

This is an important case that potentially impacts many Navy veterans who anchored in an inland waterway and were exposed to aerial spraying, but have been denied presumptive Agent Orange exposure because the VA has uniformly labeled these waterways as offshore rather than inland.  It is still unclear how the VA will handle the remand and if they will try to limit its reach, but it bears close watching and could result in compensation for many Navy veterans.

Decision by J. Schoelen and joined by J. Hagel and J. Davis.

Plantar Fasciitis

Prokarym v. McDonald, Opinion Number 13-3478, was decided April 14, 2015 and concerns a veteran seeking a higher rating for bilateral plantar fasciitis.

The veteran’s plantar fasciitis was rated by analogy to the criteria for flatfoot (DC 5276).  The veteran sought a higher rating and the VA admitted that both DC 5276 and DC 5284 (other foot injuries) were potentially applicable.  The VA granted two 10% ratings (for each foot under DC 5284 for prior to July 2013 and a single 50% rating after July 2013 under DC 5276.

The veteran argued that he should have had a severe rating of 30% for each foot under DC 5284 because of the determination that he had pronounced bilateral feet under DC 5276.  He pointed to the 10% rating for moderate flatfoot and said it is incongruous that he received a “pronounced rating under DC 5276, which is considered a more severe degree of symptomology than severe but does not amount to a severe rating under DC 5284.

The Court found it was not appropriate to merely determine a severe disability under DC 5276 is equivalent to a severe disability under DC 5284.  The Court notes the difference reflects the Secretary’s judgment that a severe foot injury under DC 5284 represents a more disabling condition than severe flatfoot under DC 5276.

The Court also considered the request for a higher rating and found the Board did not clearly err when it determined the veteran would not be entitled to a severe rating under DC 5284 nor that it failed to provide adequate reasons or basis for its decision.  “The Board found that the record did not contain evidence of foot symptoms other than those contemplated by DC 5276 and [the veteran] has not identified any other foot symptoms the Board overlooked.”

Decision by J. Lance, joined by J. Hagel and J. Bartley.

Tinnitus and Statutory Intepretation

Fountain v. McDonald, Opinion Number 13-0540, was decided February 9, 2015 and concerns a veteran seeking service connection for tinnitus.

The veteran argued that he had had tinnitus since an acoustical trauma while in the service and the Board did not provide adequate reasons or bases for rejecting his testimony regarding his continuity of symptoms.

38 CFR Section 3.309 lists chronic condition for which continuity of symptoms might be used to prove service connection.  It lists several specific diseases as well as a catch all—“other organic diseases of the nervous system.”  The veteran argued tinnitus was an organic disease of the nervous system whereas the Secretary admitted the term is ambiguous but argued the established policy of the VA in a Training Letter showed that tinnitus is not among the diseases listed as chronic under 3.309 as an organic disease of the nervous system.

First, the court noted the VA’s regulation for the most part simply repeated the statutory language.  This is significant because it meant the deference owed to the VA was lower.  The Court then stated that lacking the formalities of notice and comment rule making, the Training Letter is entitled to deference only such that it has the power to persuade.  The Court found the Training Letter unpersuasive.  The Court also took the step of examining prior Board decisions which found tinnitus was an organic disease.  The Court noted the Board decisions were non-precedential, but noted the pertinent question is the whether the Secretary’s interpretation has the “power to persuade” and “the Board decisions indicate the lack of persuasiveness of an established VA policy on the issue and the lack of persuasiveness of the Agency’s current position.”  Id. at *17.  The Court also invoked the Gardner  Presumption to find in the face of ambiguity, interpretative doubt is to be resolved in favor of the veteran.  Id. at *18. 

The Court then went on to find the Board erred by rejecting the veteran’s statements of a chronic symptoms because they were based exclusively on the lack of documentation of complaints of tinnitus.  The Court explained what is required to make such a determination on negative evidence and noted in this case the Board did not lay a p[roper foundation for its determination.

This case is a good primer on regulatory and statutory interpretation and especially demonstrates how to use prior Board decisions to show a present interpretation is unpersuasive.  It seems to conflict powerfully with the Hudgens v. McDonald, which is now the subject of an appeal.  The case is also important for demonstrating how the Board must lay a proper foundation before drawing an adverse inference from negative evidence.

Decision by J. Moorman, joined by J. Hagel and J. Bartley.