Scott v. Wilkie , 920 F.3d 1375 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
JOHN B. SCOTT,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-1535
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-734, Chief Judge Robert N. Da-
vis, Judge Michael P. Allen, Judge Joseph L. Toth.
______________________
Decided: April 15, 2019
______________________
CORA RENAE HOLT, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Washington, DC, argued for
claimant-appellant. Also represented by PAUL WILLIAM
BROWNING, RONALD LEE SMITH, GUANG-YU ZHU.
JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
MARTIN F. HOCKEY, JR., ROBERT EDWARD KIRSCHMAN, JR.,
JOSEPH H. HUNT; BRIAN D. GRIFFIN, JONATHAN KRISCH,
2 SCOTT v. WILKIE
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
O’MALLEY, Circuit Judge.
United States Navy veteran John Scott appeals a deci-
sion of the United States Court of Appeals for Veterans
Claims (“the Veterans Court”) affirming the determination
of the Board of Veterans’ Appeals (“the Board”). The Board
determined that Scott was only entitled to a disability rat-
ing under diagnostic code (“DC”) 5276 on the VA’s disabil-
ity rating schedule and that DC 5284 was inapplicable.
Because the Veterans Court improperly affirmed the Board
based on rationales the Board never provided and because
the Board legally erred by failing to consider DC 5284 for
Scott’s unlisted foot disability, we vacate and remand.
I. BACKGROUND
A. The Disability Rating Schedule
The Department of Veterans Affairs regulations estab-
lish a disability rating schedule that provides specific DCs
for certain disabilities. See 38 C.F.R. § 4.71a. Relevant to
this appeal, DCs 5276–5284 relate to foot conditions. DCs
5276 through 5283 identify specific foot conditions a vet-
eran might suffer (“listed conditions”). Listed conditions
include, for example, flatfoot, which is covered by DC 5276.
DC 5284, on the other hand, broadly covers “Foot injuries,
other,” without identifying any specific condition.
In this appeal, we consider whether foot conditions not
specifically listed in the rating schedule (“unlisted condi-
tions”) may be rated by analogy under DC 5284. We hold
that they may and, indeed, such a rating by analogy must
be considered by the Board for its determination to be com-
plete.
SCOTT v. WILKIE 3
B. Procedural History
In the early 1970s, during his time serving in the Navy,
Scott developed a bilateral foot disability caused by pro-
longed standing. J.A. 370, 2042. In August 1973, the De-
partment of Veterans Affairs Regional Office awarded
Scott service connection for bilateral pes planus (i.e., flat-
foot) and granted him a 0% disability rating under
DC 5276. J.A. 2038. In January 1990, the Regional Office
amended Scott’s service connection to include a hallux val-
gus deformity (i.e., angulation of the big toe toward the
other toes) as part of his pes planus without altering his
0% disability rating under DC 5276. J.A. 1470–71. Scott’s
foot disability continued to progress, and, in April 2007, a
Department of Veterans Affairs medical examiner diag-
nosed Scott with plantar fibromas (i.e., masses of fibrous
tissue in the arch of the foot) in addition to his prior diag-
nosis of pes planus with hallux valgus deformity.
J.A. 1033.
Despite his new diagnosis, the Regional Office contin-
ued Scott’s 0% disability rating for “bilateral pes planus
with slight hallux valgus deformity” under DC 5276 with-
out discussing service connection for his plantar fibromas.
J.A. 2554–56. Scott filed a notice of disagreement and, in
October 2014, after a seven-year delay, the Regional Office
issued a new rating decision increasing Scott’s disability
rating under DC 5276 from 0% to 30%. J.A. 2131–32. The
October decision did not mention Scott’s plantar fibromas.
Scott appealed to the Board.
On January 13, 2016, the Board issued its decision in-
creasing Scott’s disability rating from 30% to 50%. J.A. 15.
The Board recognized that Scott’s medical record revealed
“palpable fibromas in both plantar arches” and that Scott
experienced “significant pain on palpation of his plantar
arches in the areas of the fibromas.” J.A. 24. The Board
also acknowledged that Scott’s medical diagnoses included
“bilateral pes planus, moderate hallux valgus deformity
4 SCOTT v. WILKIE
bilaterally, and plantar fibromas.” J.A. 24. (emphasis
added). Nonetheless, the Board did not directly address
the effect of Scott’s plantar fibromas on his disability rat-
ing. Rather, the Board concluded that Scott was entitled
to a 50% rating “under DC 5276 . . . for [his] bilateral pes
planus” under the benefit of the doubt rule because, while
he did not present all symptoms necessary for a 50% rating,
the medical record showed Scott’s disability as having a
“chronic, progressive nature and symptomology.” J.A. 26;
see 38 U.S.C. § 5107(b).
In reaching its conclusion, the Board noted that
DC 5284 was “not applicable” because “the Veteran’s ser-
vice-connected condition, pes planus, is one of the foot con-
dition[s] specifically listed in [the diagnostic code]” and “to
rate his pes planus under DC 5284 would constitute an im-
permissible rating by analogy.” J.A. 26–27 (emphasis
added). The Board stated, moreover, that all of Scott’s
symptomatology was “being compensated for in the in-
creased evaluation provided under DC 5276.” J.A. 27. Fi-
nally, the Board acknowledged that, while it is required to
consider a veteran’s entitlement to a higher evaluation un-
der other DCs, here, “analogous ratings for impairment of
the foot either are not applicable to the Veteran’s case or do
not offer a higher disability rating.” J.A. 27 (emphasis
added).
Scott appealed to the Veterans Court, arguing that the
Board erred in failing to consider DC 5284 for his plantar
fibromas or adequately explain why DC 5284 did not apply.
On July 19, 2017, the Veterans Court affirmed the Board’s
decision in a single-judge memorandum decision. Scott v.
Shulkin, No. 16-0734, 2017 WL 3045899, at *1 (Vet. App.
July 19, 2017). The Veterans Court found that the Board’s
“selection” of DC 5276 over DC 5284 was not arbitrary and
capricious because (1) the Board had considered the evi-
dence of record and concluded that “DC 5276 most nearly
approximated his symptoms,” and (2) evaluating Scott’s
plantar fibromas under multiple DCs would have
SCOTT v. WILKIE 5
constituted impermissible pyramiding under 38 C.F.R.
§ 4.14. Id. at *1–2.
Scott sought reconsideration or, in the alternative, a
panel decision. J.A. 5. The Veterans Court denied Scott’s
motion for reconsideration and a panel affirmed the single-
judge memorandum decision on November 16, 2017.
J.A. 5–6. The Veterans Court entered final judgment on
December 8, 2017. This appeal followed.
II. DISCUSSION
Our jurisdiction over decisions of the Veterans Court is
limited by statute. Pursuant to 38 U.S.C. § 7292(a), we
may review the validity of a Veterans Court’s decision on
“a rule of law or of any statute or regulation . . . or any
interpretation thereof” that the Veterans Court relied on in
making its decision. Unless the case presents a constitu-
tional issue, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). Where, as here, the material facts are undis-
puted “and the adoption of a particular legal standard
would dictate the outcome of a veteran’s claim, we treat the
application of law to undisputed fact as a question of law.”
Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008).
Because Scott’s appeal concerns the Veterans Court’s
interpretation of a rule of law—namely, the applicability of
DC 5284 in the context of disabilities both listed and not
listed in the VA’s schedule of ratings—and because it is un-
disputed that Scott suffers from an unlisted service-con-
nected foot condition, we have jurisdiction. See, e.g., Harris
v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013) (“[W]e may
6 SCOTT v. WILKIE
consider whether the Veterans Court failed to consider a
controlling rule of law in reaching its decision.”). 1
Scott raises two arguments on appeal: (1) the Board
and the Veterans Court legally erred by failing to consider
DC 5284 for Scott’s unlisted foot disability, plantar fibro-
mas; and (2) the Veterans Court legally erred by substitut-
ing new rationales for the Board’s decision. We agree with
Scott on both points.
A. The Board Is Required to Consider
DC 5284 When Evaluating Unlisted Conditions
It is undisputed that Scott suffers from three service-
connected conditions, among others: pes planus, hallux val-
gus (as part of his pes planus), and plantar fibromas. See
Appellant Br. 4; Appellee Br. 3–4, 7. Pes planus is a listed
condition; plantar fibromas is not. Because pes planus is a
listed condition, the Board found DC 5284 inapplicable to
Scott’s disability rating determination. That was legal er-
ror.
The Veterans Court first addressed the applicability of
DC 5284 to listed conditions for foot-related disabilities in
Copeland v. McDonald, 27 Vet. App. 333 (2015). There,
veteran Ulysses Copeland suffered from two listed condi-
tions: bilateral pes planus and hallux valgus. Id. at 335.
While the Board granted Copeland a disability rating un-
der DCs 5276 and 5280 (covering pes planus and hallux
valgus, respectively), Copeland argued that he was entitled
to a higher rating under DC 5284, which he contended was
a “catch-all” for all foot conditions. Id. at 336. The
1 While some factual questions remain open—in-
cluding, for example, which diagnostic code will ultimately
apply and the final disability rating to which Scott is enti-
tled—Scott does not ask us to make those findings on ap-
peal or apply the law to those facts, see Reply Br. 2, nor
could we under § 7292(d)(2).
SCOTT v. WILKIE 7
Veterans Court disagreed, holding that, “as a matter of
law, DC 5284 does not apply to the eight foot conditions
specifically listed” in the rating schedule. Id. at 338. The
court explained that a listed condition must be rated “un-
der the DC that specifically pertains to it.” Id. at 337. Un-
listed conditions, on the other hand, “may be rated by
analogy under the DC for ‘a closely related disease or in-
jury.’” Id. at 336 (quoting 38 C.F.R. § 4.20 (2014)). Because
Copeland’s foot conditions were both listed in the rating
schedule under specific diagnostic codes, rating them un-
der DC 5284 would have constituted an impermissible rat-
ing by analogy. Id. at 338.
Less than a year after Copeland, the Veterans Court
addressed the applicability of DC 5284 to unlisted condi-
tions in Yancy v. McDonald, 27 Vet. App. 484 (2016). Vet-
eran Nathan Yancy was diagnosed with both listed and
unlisted conditions, but the Board based its disability rat-
ing solely on Yancy’s listed condition, pes planus. Id. at
493. On appeal, the Veterans Court vacated and remanded
the Board’s decision. Id. at 497. The court explained that,
in Copeland, it held that “listed conditions could not be
rated by analogy” under DC 5284 but that it had not ad-
dressed “whether unlisted conditions may be rated by anal-
ogy under that DC.” Id. at 491 (emphases added). Looking
to the language of the rating schedule and its underlying
statutory and regulatory framework, the Veterans Court
concluded that “the plain meaning of the word ‘injury’ lim-
its the application of DC 5284 to disabilities resulting from
actual injuries to the foot, as opposed to disabilities caused
by, for example, degenerative conditions,” but that “noth-
ing prevents the Board from rating closely related condi-
tions by analogy under that DC.” Id. at 493. Accordingly,
the court held that unlisted conditions may be rated by
8 SCOTT v. WILKIE
analogy under DC 5284. Id. The Veterans Court has since
followed that procedure in several other cases. 2
We adopt the Veterans Court’s approach as set forth in
these cases. Under Copeland and Yancy, the Board is obli-
gated to consider analogous DCs, including DC 5284, when
rating unlisted conditions, despite the presence of listed
conditions. The Board here failed to follow this rule. While
the Board discussed Scott’s plantar fibromas in its recita-
tion of the medical record (see J.A. 23–24), it failed to con-
sider whether Scott was entitled to a disability rating for
that unlisted condition. At most, the Board treated Scott’s
unlisted condition (plantar fibromas) as a symptom of his
2 See, e.g., Rolen v. Wilkie, No. 17-3176, 2018 WL
4616298, at *2 (Vet. App. Sept. 25, 2018) (finding remand
warranted because Board failed to address evidence of vet-
eran’s unlisted symptoms “or explain whether these symp-
toms are analogous to the symptoms of pes planus” such
that they were appropriately rated under DC 5276); Tyner
v. McDonald, No. 15-1113, 2016 WL 6885866, at *2–3 (Vet.
App. Nov. 23, 2016) (finding the Board’s reasoning “for the
selection of DC 5276, considered in isolation, . . . does not
provide an adequate explanation for the exclusion of
DC 5284 as an alternative possibility” and the Board’s fail-
ure to consider whether the veteran’s unlisted condition
might be rated by analogy to DC 5284 “render[ed] its state-
ment of reasons or bases inadequate, requiring remand”);
Stacy v. McDonald, No. 14-4396, 2016 WL 1719132, at *1
(Vet. App. Apr. 29, 2016) (remanding to Board for consid-
eration in the first instance whether veteran’s unlisted con-
dition deserves to be rated separately under DC 5284
because a finding that the veteran’s pain was associated
with a listed disability “does not explain why the [unlisted]
disability itself does not warrant a separate rating under
its own DC”).
SCOTT v. WILKIE 9
pes planus, rather than a separate condition, without mak-
ing any factual finding to support that analysis.
While the Secretary is correct that “there can be no
doubt that the [B]oard considered the prospect of an addi-
tional rating under DC 5284,” Appellee Br. 16, the Board’s
analysis focused on the wrong condition. That is, the Board
was correct that rating Scott’s pes planus or hallux valgus
under DC 5284 would be improper under Copeland, but the
Board failed to consider Scott’s unlisted condition—plantar
fibromas—under DC 5284 and, instead, found DC 5284 ne-
gated by Scott’s pes planus. This is directly contrary to
Yancy. Rather, the Board was required to consider
“whether [the veteran’s] unlisted conditions could be rated
by analogy pursuant to DC 5284.” Yancy, 27 Vet. App. at
493. Because the Board failed to consider the applicability
of DC 5284 to Scott’s unlisted condition, its analysis solely
under DC 5276—without any factual finding that the two
conditions constituted one disability properly rated under
that DC—is not in accordance with law.
The Board’s broad statement, moreover, that “all of
[Scott’s] symptomatology is being compensated for in the
increased evaluation provided under DC 5276” does not
mitigate the Board’s error. J.A. 27. The Board made no
factual findings to support this conclusion. For example,
the Board never considered whether Scott was entitled to
a disability rating for his unlisted condition under DC 5284
or whether a higher rating would be available to cover “all
of his symptomatology.” Nor did the Board determine
whether Scott’s unlisted condition was more properly con-
sidered an additional symptom of his pes planus, rather
than a separate diagnosis, such that a rating only under
DC 5276 was appropriate. Without these factual findings,
the Board’s decision cannot stand. See Allday v. Brown, 7
Vet. App. 517, 527 (1995).
10 SCOTT v. WILKIE
B. The Veterans Court Wrongly Substituted
New Rationale for the Board’s Decision
The Veterans Court compounded the Board’s error by
both failing to correct it and by substituting new rationales
of its own. First, despite Scott specifically citing Yancy and
raising this argument in his brief to the court (see
J.A. 2571–74), the Veterans Court never addressed the ap-
plicability of DC 5284 to Scott’s unlisted conditions nor cor-
rected the Board’s failure to do so. The Veterans Court,
instead, proceeded as though the Board made factual find-
ings to determine that Scott’s plantar fibromas and pes
planus presented the same symptomatology and were
properly compensated under DC 5276. Scott, 2017 WL
3045899, at *1–2. But, as addressed above, the Board
made no such findings. 3
Second, the Veterans Court found that rating Scott’s
plantar fibromas under DC 5284 would have been
3 The Veterans Court, moreover, conflated the find-
ings the Board did make. Rather than “select[]” DC 5276
over DC 5284, the Board found that Scott’s symptoms
“more nearly approximate the criteria for a 50 percent dis-
ability rating under DC 5276,” despite Scott not yet satis-
fying the full criteria for a 50% rating. J.A. 26. That is, the
Board evaluated whether Scott was entitled to a 30% or a
50% rating under DC 5276 and concluded that 50% “best
reflects the disability picture shown.” J.A. 26. The Board
did not, as the Veterans Court finds, evaluate whether DC
5276 or DC 5284 “most nearly approximate[d] his symp-
toms.” In fact, the Board could not have made that finding
given its failure to address whether Scott’s conditions were
properly treated as one disability or whether Scott’s plan-
tar fibromas was entitled to a separate rating and, if so,
which diagnostic code would grant Scott a higher disability
rating. The Veterans Court cannot make those findings in
the first instance on appeal.
SCOTT v. WILKIE 11
impermissible pyramiding. See 38 C.F.R. § 4.14. But, be-
yond broadly listing plantar fibromas among Scott’s medi-
cal history, the Board made no findings to support treating
Scott’s two conditions as one disability such that the rule
against pyramiding would even apply. See Fanning v.
Brown, 4 Vet. App. 225, 231 (1993) (“When the Board finds
appellant is not entitled to a separate rating for a disability
due to pyramiding, the decision must include an explana-
tion of the [Board’s] reasons for so concluding according to
the applicable law and regulations.”). The Veterans Court
cannot simply “chisel that which must be precise from what
the agency has left vague and indecisive.” SEC v. Chenery
Corp., 332 U.S. 194, 197 (1947).
III. CONCLUSION
For the foregoing reasons, we vacate the Veterans
Court’s decision upholding the Board’s determination and
remand for proper consideration of Scott’s foot disabilities
under DC 5284.
VACATED AND REMANDED
COSTS
Costs to Appellant.