JOHN B. SCOTT, Claimant-Appellant
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 16-734, Chief Judge Robert N. Davis, Judge Michael P.
Allen, Judge Joseph L. Toth.
Renae Holt, Finnegan, Henderson, Farabow, Garrett &
Dunner, LLP, Washington, DC, argued for claimant-appellant.
Also represented by Paul William Browning, Ronald Lee Smith,
Moses, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
respondent-appellee. Also represented by Martin F. Hockey,
Jr., Robert Edward Kirschman, Jr., Joseph H. Hunt; Brian D.
Griffin, Jonathan Krisch, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
Newman, O'Malley, and Taranto, Circuit Judges.
O'MALLEY, CIRCUIT JUDGE
States Navy veteran John Scott appeals a decision of the
United States Court of Appeals for Veterans Claims ("the
Veterans Court") affirming the determination of the
Board of Veterans' Appeals ("the Board"). The
Board determined that Scott was only entitled to a disability
rating under diagnostic code ("DC") 5276 on the
VA's disability rating schedule and that DC 5284 was
inapplicable. Because the Veterans Court improperly affirmed
the Board based on rationales the Board never provided and
because the Board legally erred by failing to consider DC
5284 for Scott's unlisted foot disability, we vacate and
Disability Rating Schedule
Department of Veterans Affairs regulations establish a
disability rating schedule that provides specific DCs for
certain disabilities. See 38 C.F.R. § 4.71a.
Relevant to this appeal, DCs 5276-5284 relate to foot
conditions. DCs 5276 through 5283 identify specific foot
conditions a veteran might suffer ("listed
conditions"). Listed conditions include, for example,
flatfoot, which is covered by DC 5276. DC 5284, on the other
hand, broadly covers "Foot injuries, other,"
without identifying any specific condition.
appeal, we consider whether foot conditions not specifically
listed in the rating schedule ("unlisted
conditions") may be rated by analogy under DC 5284. We
hold that they may and, indeed, such a rating by analogy must
be considered by the Board for its determination to be
early 1970s, during his time serving in the Navy, Scott
developed a bilateral foot disability caused by prolonged
standing. J.A. 370, 2042. In August 1973, the Department of
Veterans Affairs Regional Office awarded Scott service
connection for bilateral pes planus (i.e.,
flat-foot) and granted him a 0% disability rating under DC
5276. J.A. 2038. In January 1990, the Regional Office amended
Scott's service connection to include a hallux valgus
deformity (i.e., angulation of the big toe toward
the other toes) as part of his pes planus without altering
his 0% disability rating under DC 5276. J.A. 1470-71.
Scott's foot disability continued to progress, and, in
April 2007, a Department of Veterans Affairs medical examiner
diagnosed Scott with plantar fibromas (i.e., masses
of fibrous tissue in the arch of the foot) in addition to his
prior diagnosis of pes planus with hallux valgus deformity.
his new diagnosis, the Regional Office continued Scott's
0% disability rating for "bilateral pes planus with
slight hallux valgus deformity" under DC 5276 without
discussing service connection for his plantar fibromas. J.A.
2554-56. Scott filed a notice of disagreement and, in October
2014, after a seven-year delay, the Regional Office issued a
new rating decision increasing Scott's disability rating
under DC 5276 from 0% to 30%. J.A. 2131-32. The October
decision did not mention Scott's plantar fibromas. Scott
appealed to the Board.
January 13, 2016, the Board issued its decision increasing
Scott's disability rating from 30% to 50%. J.A. 15. The
Board recognized that Scott's medical record revealed
"palpable fibromas in both plantar arches" and that
Scott experienced "significant pain on palpation of his
plantar arches in the areas of the fibromas." J.A. 24.
The Board also acknowledged that Scott's medical
diagnoses included "bilateral pes planus, moderate
hallux valgus deformity bilaterally, and plantar
fibromas." J.A. 24. (emphasis added). Nonetheless,
the Board did not directly address the effect of Scott's
plantar fibromas on his disability rating. Rather, the Board
concluded that Scott was entitled to a 50% rating "under
DC 5276 . . . for [his] bilateral pes planus" under the
benefit of the doubt rule because, while he did not present