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Court Wins

CCK Helps Veteran Win Extraschedular TDIU for Aggravated Foot Condition

February 18, 2022
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Case Summary

The Veteran served in the United States military from April 1968 to September 1968.  He was medically discharged due to a preexisting foot condition, pes cavus with hammertoe.

The Veteran filed a VA disability claim for pes cavus in April 1969, as the condition had significantly worsened during his time in service.  The Department of Veterans Affairs (VA) denied the claim one month later.

After several consecutive appeals and denials and a new claim for the condition in July 2004, VA granted service connection for his foot condition in April 2008.  VA determined that his service caused permanent aggravation of his condition.  Prior to service, his bilateral pes cavus was evaluated as 30 percent disabling and following service, his disability warranted a 50 percent rating.  Therefore, VA assigned a 20 percent disability rating for the in-service aggravation of pes cavus.

The Veteran filed an appeal, requesting an increased rating for his bilateral foot condition.  In 2012, the Veteran also filed a claim for entitlement to total disability based on individual unemployability (TDIU), citing financial hardship.  In December 2013, the Board of Veterans’ Appeals denied both his appeal and claim.

CCK Assists Veteran in Securing CAVC and Board Remands

Chisholm Chisholm & Kilpatrick joined the Veteran’s case in 2014 and assisted him in securing a Court of Appeals for Veterans Claims (CAVC) Joint Motion for Remand.  After a few subsequent appeals and Board denials and another CAVC Joint Motion for Remand, the case returned to the Board in October 2018.

CCK argued that in a previous decision the Board had not provided adequate reasoning for disregarding favorable evidence and instead relied solely on a September 2015 examination.  The exam in question determined that the severity of the Veteran’s condition was not functionally equivalent to amputation, suggesting that a higher rating was not warranted.  Meanwhile, other credible medical reports, such as an August 2018 report, stated that his condition was functionally equivalent to amputation.

Based on CCK’s arguments, the Board remanded the issue.  As part of this remand, the Board requested a new VA examination by a podiatrist or orthopedic foot specialist to determine the current severity of the Veteran’s condition.

Board Grants Increased Rating and SMC for Foot Condition

In August 2019, an additional examination showed that an evaluation of loss of use of the feet was warranted, as the Veteran had little to no function in both feet.  Consequently, in November 2019, the Board granted separate 20 percent ratings in the left and right foot for aggravated pes cavus.  The Board also awarded entitlement to Special Monthly Compensation (SMC) based on loss of use of both feet.

VA initially allocated an effective date of September 14, 2015 for disability benefits for pes cavus; however, with the help of CCK, the Veteran secured an amended effective date of July 26, 2004, the date of the original claim.

CCK Helps Veteran Win Extraschedular TDIU

In May 2021, the Board revisited the issue of entitlement to extraschedular TDIU.  The Board reviewed numerous documents and medical evidence, including reports obtained by CCK.

In a 2005 VA medical report, the Veteran stated that his foot pain interfered with work and led to early retirement from employment.  Social Security Administration records also showed that the Veteran had reported he was in constant pain and could not hold a job.  Furthermore, a vocational consultant stated in 2014 that the Veteran’s service-connected bilateral foot pain “at least as likely as notprevented him from obtaining and following substantially gainful employment.  In addition to his physical limitations, his condition also negatively affected his concentration, persistence, and attendance.

Based on this evidence, the Board granted entitlement to TDIU on an extraschedular basis, with retroactive compensation from July 2004.