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Scott v. Wilkie

United States Court of Appeals, Federal Circuit

April 15, 2019

JOHN B. SCOTT, Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeal 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.

          Cora Renae Holt, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for claimant-appellant. Also represented by Paul William Browning, Ronald Lee Smith, Guang-Yu Zhu.

          Jana 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.

          Before Newman, O'Malley, and Taranto, Circuit Judges.

          O'MALLEY, CIRCUIT JUDGE

         United 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 remand.

         I. Background

         A. The Disability Rating Schedule

         The 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.

         In this 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 complete.

         B. Procedural History

         In the 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. J.A. 1033.

         Despite 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.

         On 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 all ...


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