Kurt Prokarym v. Robert A. McDonald
27 Vet. App. 307
Vet. App.2015Background
- Veteran Kurt Prokarym challenged the Board of Veterans' Appeals' November 7, 2013 decision denying an initial rating greater than 50% for bilateral plantar fasciitis with pes planus effective July 26, 2013.
- VA had previously rated his condition by analogy to acquired flatfoot (DC 5276); an August 2013 rating decision assigned a 50% evaluation effective July 26, 2013; earlier periods had separate 10% ratings per foot under DC 5284.
- A July 2013 VA C&P exam documented marked pronation, swelling and pain on use, extreme plantar tenderness, relief with arch supports, and no characteristic calluses; radiographs showed mild arch loss and minimal degenerative change.
- Prokarym argued the Board erred by not rating his condition under DC 5284 (Foot injuries, other) beginning July 26, 2013, contending a mismatch between a "pronounced" DC 5276 rating and not meeting "severe" DC 5284 criteria.
- The Secretary responded that the terms and percentage ratings differ across DCs and that a "severe" designation in DC 5276 is not equivalent to "severe" in DC 5284; the Board’s factual findings supported the 50% rating under DC 5276.
- The Court (panel) affirmed the Board: it held that "severe" is DC-specific and the Board did not clearly err in declining to assign separate DC 5284 30% ratings per foot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "severe" under DC 5276 equals "severe" under DC 5284 | Prokarym: "Severe" must be equivalent across DCs; pronounced under 5276 should equate to severe under 5284 | Sec.: Terms and percentages are DC-specific; equating them would nullify rating schedule structure | Held: Not equivalent; "severe" is a degree descriptor specific to each DC |
| Whether Board erred in not assigning >50% rating (i.e., separate 30% per foot under DC 5284) | Prokarym: Board’s findings are inconsistent—pronounced under 5276 implies severe under 5284, warranting higher combined rating | Sec.: Board reasonably found record lacked evidence of the symptoms required for "severe" under DC 5284; selection of 5276 not arbitrary | Held: No clear error; Board adequately explained reasons and selection of DC 5276 was lawful |
Key Cases Cited
- Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (interpretive principle: begin with text)
- Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (identical terms may differ by context)
- Atl. Cleaners & Dyers v. United States, 286 U.S. 427 (presumption of same meaning not rigid)
- Breniser v. Shinseki, 25 Vet.App. 64 (degree descriptors are DC-specific)
- Moskal v. United States, 498 U.S. 103 (give effect to all statutory language)
- Terry v. Principi, 340 F.3d 1378 (use ordinary meaning absent definition)
- Butts v. Brown, 5 Vet.App. 532 (Board DC selection review standard)
- Wingard v. McDonald, 779 F.3d 1354 (Court’s limited review of rating schedules)