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Court Wins

CCK Court Win Will Help Many Veterans Obtain More Compensation

Jenna Zellmer

December 16, 2016

Updated: November 20, 2023

CCK Court Win Will Help Many Veterans Obtain More Compensation

The Board of Veterans’ Appeals found that the Veteran was not entitled to a compensable rating for her bilateral foot disability.  The Board failed to consider 38 C.F.R. § 4.59 (2016) in rendering its decision.  That regulation allows for a minimum compensable rating for a painful joint disability.  The Veteran had a painful foot joint disability.

The Court held that the Board erred when it failed to consider § 4.59 in denying a compensable rating for the Veteran’s painful, bilateral foot disability.  The Court held the regulation is not limited to the evaluation of a musculoskeletal disability under diagnostic codes that are predicated on range of motion measurements, as the Secretary argued.  A minimum compensable rating under § 4.59 should be awarded on evidence of an actually painful, unstable, or malaligned joint.  The Court afforded the Secretary’s interpretation of the regulation no deference, as it was not the Secretary’s considered view on the matter.

Listen to CCK’s oral argument.
Read the Court’s precedential decision.

About the Author

Bio photo of Jenna Zellmer

Jenna joined CCK in January of 2014 as an appellate attorney, was named Managing Attorney in September of 2019, and now serves as a Partner at the firm. Her law practice focuses on representing disabled veterans at the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

See more about Jenna