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.

Pederson: The impact of abandonment on CUE and a discussion of TDIU

Pederson v. McDonald, Opinion Number 13-1853, decided February 13, 2015 concerns two issues: the impact of an abandoned issue and TDIU.

The impact of an abandoned issue has previously been addressed by the Court in Cacciola v. Gibson, 27 Vet. App. 45 (2014).  The court has previously determined that when an issue is abandoned and not decided on its merits, it is subject to a collateral attack based on CUE at a later time.  Pederson appears to have been meant to clarify Cacciola.  The Court stated when a notice of appeal from a Board decision places all issues finally decided by the Board before the Court notwithstanding whether the NOA itself or the subsequent briefs narrow the issues on appeal.  The Court notes that generally abandoned issues are not decided on the merits, but that the Court nonetheless has the authority to decide abandoned issues on the merits.  The practical impact is a Court decision must be examined during a subsequent CUE challenge to determine not simply whether the issue was abandoned, but whether the issue was reviewed by the Court on its merits. 

Judges Lance and Hagel would have more severely restricted CUE challenges noting an obligation to raise all arguments to avoid piecemeal litigation.

Pederson also concerned a claim for TDIU.  The veteran argued the Board gave inadequate reasons and bases for considering his occupational and education experience in determining whether his service connected disabilities precluded substantial gainful employment.  The Court agrees that educational and occupational history must be considered by the Board, but found the reasons and bases were sufficient.  The Court seems to take a narrow view on whether the veteran could actually perform sedentary work and not whether such a job actually exists.  This point was severely attacked by Judge Schoelen’s dissent.  Schoelen noted that being physically able to perform a task does not mean that a veteran is educationally or vocationally qualified to perform such employment.  Judge Greenberg also dissented in reference to TDIU feeling the Board deferred to the medical examiner rather than making their own determination.  Judge Pietsch also found the Board did not provide adequate reasons and bases related to TDIU but found no prejudice.

This was an en banc decision with multiple concurring and dissenting opinions.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/

Equitabe Tolling

Palomar v. McDonald, Opinion Number 14-1017, was decided March 18, 2015 and involves whether equitable tolling should apply to a late notice of appeal sent from the Philippines.

Equitable tolling to justify hearing an appeal where the notice of appeal was beyond the 120 day deadline is a constant source of new published opinions.  Here the veteran sought reconsideration from the Board more than 120 days after the initial Board decision and then the notice of appeal was mailed 133 after the Board decision denying reconsideration. 

The veteran argued equitable tolling should be applied because (1) he lives in the Philippines and the time it takes mail to arrive there is an extraordinary circumstance, (2) his physical condition (deteriorated hearing and eyesight) rendered him incapable of handling his affairs and precluded a timely filing, and (3) the Secretary provided a confusing notice of appellate rights letter.

The Court rejected all reasons for equitable tolling seemingly faulting the veteran for not presenting enough evidence to justify the equitable tolling.  The Court also used against the veteran the fact that he was able to file his notice of appeal within 120 days after the motion to reconsider was denied.

The Court also noted the appellate rights form has been found to be sufficient by the Federal Circuit in Cummins v. West.

The order was by C.J. Kasold and J. Schoelen.  J. Greenberg wrote a dissent pointing to the obvious delay in mail service between the U.S. and the Philippines and stating equity should be allowed due to the veteran’s diligence.

TDIU based on Extraschedular Considerations and the Role of the Director

Wages v. McDonald, Opinion Number 13-2694, was decided January 23, 2015 and involves a claim for TDIU based on extraschedular considerations.

Such a claim is submitted to the Director of the Compensation and Pension Service pursuant to 38 CFR 4.16(b) for determination of entitlement to TDIU. 

In this case, the issue was referred to and denied by the Director.  The Board reviewed the Director’s determination and concluded that based on multiple VA examinations, a private opinion, and the opinion of the Director, that Mr. Wages was not precluded from sedentary employment.

The veteran appealed claiming the Board erred in treating the Director’s opinion as evidence and for providing inadequate reasons and basis for the Board’s opinion for finding he was capable of sedentary work without explaining his vocational and education experience.  The veteran argued the Board owed no deference to the Director’s decision and should review it de novo.

The Secretary took the position that the Director’s decision was not evidence, but that the Board does not have the authority to overturn the Director’s decision on TDIU determinations.   The Court rejected the Secretary’s argument and found the Board has a statutory mandate to render the final decision for the Secretary on all questions arising under 38 USC 511(a).  The Court noted the Secretary’s argument that the Director’s determination was a policy decision rather than claim decision and rejected it and noted instead the Secretary’s regulation mandates that all veterans who are unemployable due to service connected disabilities shall be rated totally disabled regardless of the scheduler rating.  See 38 C.F.R. 4.16.

This is an important decision in that it now allows the Board to review a TDIU decision by the Director.  I would note that C.J. Kasold wrote concurring and stating he would have found that the Veterans Court decision prohibiting an award of extraschedular TDIU in the first instance by the Board was wrongly decided. 

Decision by J. Moorman and Pietsch with C.J. Kasold concurring.