Yancy: Foot Disabilities and Extraschedular Considerations Raised

Yancy v. McDonald, Opinion Number 14-3390, decided February 26, 2016 involves a foot disability and possible ratings for pes planus and hallux vargas and individual unemployability (IU).

The veteran was granted a 10% rating for bilateral pes planus and service connected for hallux vargus of the left and right great toes but assigned a noncompensable rating. 

Regarding his foot disability the veteran argued to the court that the Board did not provide adequate reasons and bases for denying ratings under either DC 5281 (hallus rigidus) or DC 5284 (“Foot injuries, other”).

The veteran pointed to a medical record noting “pes planus and hallux valgus et rigidus on both sides.”  This note was ignored by the Board.  The Court found the hallux rigidus suffered by the veteran might be severe and thus entitled to a 110% rating, but that the Board must make that determination in the first instance.

Regarding “other foot injuries”, the Court held the plain meaning of the word “injury” limited to DC 5284 to disabilities resulting from actual injuries to the foot as opposed to disabilities caused by degenerative conditions.  (As a note, this distinction seems hard to maintain, many actual injuries lead to degenerative changes.).  However, the Court then stated that while DC 5284 is limited to disabilities resulting from actual injuries to the foot, nothing prevents the Board from rating closely related conditions by analogy under DC 5284.  The Court then determined that because the Board did not discuss whether the veteran’s unlisted conditions could be rated by analogy to DC 5284 and its failure to do renders its statement of reasons or bases inadequate.

Regarding individual unemployability, the Court noted that the Board must consider referral for extraschedular considerations where evidence of the record shows exception or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate. The Court explained the first two elements to consider in determining whether IU is raised is whether the evidence before the VA presents such an exceptional disability picture that he available scheduler evaluations are inadequate and whether the veteran’s exceptional disability picture exhibits other factors such as marked interference with employment or frequent hospitalization.  If the first two tests are met, the question must be referred to the Under Secretary for Benefits or the Director of Compensation Services for a determination of whether an extraschedular rating is warranted.

The Court also noted that Federal Circuit case law makes clear that extraschedular considerations should consider the collective impact of multiple service connected disabilities.

The Court then looked at whether extraschedular considerations had been raised by the veteran.  The Court noted the record reflected he could not stand or sit for long periods of time as a result of his service connected disabilities, and that was enough to raise the issue. 

This is an important case for espousing a fairly liberal view of what raises the issue of extraschedular considerations (inability to stand or sit for long periods of time).  While it also limits DC 5284 to actual injuries to the foot as opposed to degenerative changes, the impact of this limitation is muted 

by exhortation to consider a rating by analogy.

Decision by Judge Lance, Davis, and Greenberg.