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Court Wins

Pes planus denial based on misapplication of the law, Court finds

Robert Chisholm

January 26, 2018

Updated: November 20, 2023

Pes planus denial based on misapplication of the law, Court finds


The Veteran served in the United States Army from November 1974 to January 1975.  VA granted service connection for a painful bunion on his right foot in December 1974.  The Veteran’s pes planus caused pain, swelling, and stiffness in his feet while standing, walking, and at rest.  In October 2009, the Veteran applied for service connection and compensation for bilateral foot problems.  In February 2010 VA granted service-connection for bilateral pes planus with an evaluation of 10% effective October 2009.  The Veteran disagreed with this decision in June 2010.  An April 2011 Statement of the Case increased the Veteran’s bilateral pes planus rating to 30% effective October 2009.  The Veteran  perfected his appeal in May 2011 when he sought entitlement to an increased rating above 30%.  The Veteran raised TDIU as part and parcel to the increased rating claim for  his foot condition in a  January 18, 2013 BVA Hearing.

BVA denies TDIU based on pes planus

The Board of Veterans’ Appeals denied a TDIU rating because it concluded that the Veteran’s service-connected disabilities did not preclude substantially gainful employment.  The Board supported its decision by noting that the Veteran last worked in August 2008 and that the Social Security Administration did not grant benefits solely based on the Veteran’s pes planus.  Additionally, the Board pointed to other evidence in the record that the Veteran’s non-service-connected disabilities caused his unemployability.  The Board ultimately concluded that there was not competent or credible evidence that the Veteran’s pes planus alone, without regard to his non-service-connected disabilities, prevented him from obtaining or maintaining substantially gainful employment.

CCK appeals to the CAVC

CCK successfully appealed the Board’s denial of TDIU  to the CAVC.  The Court found the Board committed legal error in its decision to deny TDIU.

CAVC agrees with CCK’s argument

CCK argued, and the Court agreed, that the Board erred when it denied the Veteran a TDIU rating.  The Court found that the Board’s analysis was a misapplication of the law.  Rather than determining whether the Veteran’s pes planus alone was of sufficient severity to produce unemployability, the Board denied TDIU because unemployment was not solely caused by pes planus.  The fact that the Veteran’s unemployment may have been in part caused by non-service-connected disabilities is not fatal to his TDIU claim.

Instead, the Court found the Board should have addressed whether the severity of his pes planus, considered alone, would be enough to cause unemployability.  Therefore, the Court  set aside the Board’s decision and remanded for a new decision consistent with its opinion.

To read the Court’s decision, click here. 


About the Author

Bio photo of Robert Chisholm

Robert is a Founding Partner of CCK Law. His law practice focuses on representing disabled veterans in the United States Court of Appeals for Veterans Claims and before the Department of Veterans Affairs. As a veterans lawyer Robert has been representing disabled veterans since 1990. During his extensive career, Robert has successfully represented veterans before the Board of Veterans Appeals, Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Federal Circuit.

See more about Robert