Hyperkeratosis increased rating denial contained legal error

CCK Law: Our Vital Role in Veterans Law

Summary

The Veteran served on active duty in the Air Force from 1957 to 1960.  In 2010, he filed a claim for service connection for a bilateral foot disability. He was granted service connection for bilateral hyperkeratosis in December of 2011 and granted a 10% disability rating for each foot.  The Veteran appealed this decision, seeking ratings in excess of 10%.  In February of 2015, the Board of Veterans’ Appeals remanded his claim to obtain a new examination addressing the current severity of his foot disability.  After the examination was obtained, the case was returned to the Board.

Board denied increased rating for bilateral hyperkeratosis prior to June 2014

In March of 2016, the Board granted the Veteran entitlement to a 20% rating for his right foot beginning in June of 2014 and entitlement to a 30% rating for his left foot beginning the same day.  However, the Board denied the Veteran entitlement to ratings in excess of 10% for the period prior to June of 2014.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the denial of an increased rating for the Veteran’s bilateral foot disability prior to June 2014. In its decision, the Board determined that the Veteran’s foot disability worsened in June 2014 and was manifested by bleeding, painful callouses, and significant problems walking and standing from that point forward. It determined that an increased rating was not warranted for the period prior to June 2014 because such symptoms were not present during the earlier period.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in concluding that an increased rating was not warranted for the Veteran’s bilateral hyperkeratosis for the period prior to June of 2014.  CCK pointed out that much of the evidence that the Board used to determine that a higher rating was warranted for the latter period was also present during the earlier period, and that the Board failed to adequately explain why the Veteran’s symptoms were properly considered mild during the earlier period simply because they may have worsened during the latter period. The Court vacated and remanded the Board’s decision on the issue of entitlement to an increased rating for the Veteran’s bilateral foot disability for the period prior to June 2014, and remanded the case for further proceedings consistent with the Court’s opinion