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BVA denies increased rating for left foot disability based on inadequate consideration of symptoms

BVA denies increased rating for left foot disability based on inadequate consideration of symptoms

Summary

The Veteran served in the Air Force from 1981 to 2003.  The VA Regional Office granted him service connection for plantar wart and calluses of the left foot and assigned a noncompensable rating for his left foot disability effective from the date of discharge.

In 2008, the Veteran filed a claim for an increased rating of his foot disability.  The Veteran reported in a July 2008 VA exam that he underwent an operation on his left foot and now suffered pain at the site of surgery.  Furthermore, he reported the need for orthopedics, as well as missing work for his surgery and podiatrist visits.  The examiner noted that the callus on his left foot significantly impacted his job as a plant engineer.  Despite this favorable exam the Veteran’s claim was denied.

In 2009, the Veteran filed another claim for an increased rating.  The Board of Veterans’ Appeals eventually remanded his claim for a new VA examination of his left foot.  The Veteran underwent another VA examination in January 2014.  At that time he reported having calluses on his foot.  This condition required him to see a podiatrist every 30 to 40 days.  Furthermore, the examiner noted the pain associated with his calluses limited the Veteran’s ability to stand to one and a half hours and impaired his mobility.  Both of these factors impaired his ability to work.  In June 2016, the Board awarded a 10% schedular rating for the Veteran’s left foot callus.  The Board denied referral for consideration of an extraschedular rating.

CCK appeals to Court for a higher rating for left foot disability

CCK successfully appealed to the Court the Board’s denial of a rating higher than 10% for the Veteran’s service-connected left foot disability.  In its decision, the Board found that the Veteran’s disability was manifested by pain and tenderness.  It found that the schedular criteria reasonably described the symptoms and severity of the Veteran’s disability, including this pain and tenderness.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to acknowledge or provide any meaningful discussion of the Veteran’s symptoms other than pain and tenderness, including his inability to stand or walk for any significant period of time, reduced mobility, and frequent trips to the podiatrist.  The Court also agreed that the Board failed to account for these symptoms in its consideration of extraschedular referral.  The Court vacated the Board’s decision and remanded the Veteran’s claim for readjudication.

To read a copy of the Court’s decision, click here. 

Category: Veterans Law

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