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Foot condition denial contained legal error, Court finds

Foot condition denial contained legal error, Court finds

Veteran seeks increased rating for foot condition & separate ratings

The Veteran served on active duty in the Army from March 1984 to June 1984, December 1990 to June 1991, and from January 2003 to March 2004. She was granted service connection for bilateral plantar fibromatosis with left plantar fasciitis and left heel spur (foot condition) and assigned a 10% rating.  In September 2008, the Veteran sought an increased evaluation for her bilateral foot condition and requested a separate evaluation for arthritic changes, to include bilateral calcaneal spurs. VA denied this claim and the Veteran appealed to the Board of Veterans’ Appeals.  The Board issued a remand in November 2014 for further development.

Board denies entitlement to separate ratings

In March 2016, the Board denied separate evaluations for the bilateral arthritic changes. The Board relied on an April 2015 VA addendum opinion to support its determination that entitlement on a secondary basis was not warranted because the evidence did not show that the condition was “due to or caused by or aggravated by” a service-connected disability.

CCK appeals to the Court of Appeals for Veterans Claims

CCK successfully appealed to the Court the denial of service connection and entitlement to separate ratings for foot arthritis. In its decision, the Board relied on the April 2015 VA addendum which was inadequate to adjudicate the issue of secondary service connection.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the VA examination on which the Board relied was insufficient because it was not adequate to adjudicate the issue of secondary service connection. The opinion stated that the Veteran’s bilateral foot arthritis was “less likely as not related to” her service-connected foot condition, and “there is no preponderance of the evidence to support this association in expert literature.” In April 2017, the Court determined that although the phrase “related to” could be interpreted as including an opinion on aggravation, it was not clear whether the examiner opined so here. Also, the Court found it troubling that the Board relied on the April 2015 VA opinion as the examiner based her opinion on a preponderance of the evidence, as it is established that claimants need only present “an approximate balance” of positive and negative evidence to satisfy their claim.

The Secretary moved for reconsideration of the Court’s decision, but the Court still agrees with CCK

In June 2017, the Court issued a new decision after the Secretary filed a motion for the Court to reconsider its decision. The Court concluded that the Board clearly erred in finding the April 2015 VA addendum opinion adequate to adjudicate the issue of entitlement to secondary service connection for bilateral foot arthritis based on a theory of aggravation. The Court held remand was therefore warranted for the Board to obtain a VA medical opinion that adequately addressed whether it was as likely as not that the Veteran’s service-connected foot condition worsened her bilateral foot arthritis of the talonavicular and tarsometatarsal joints of the left and right lower extremities.

Category: Court Wins



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