Scott v. Wilkie
920 F.3d 1375
Fed. Cir.2019Background
- John Scott, Navy veteran, has service-connected bilateral pes planus (flatfoot) and later-diagnosed plantar fibromas (unlisted foot condition); initially rated 0% under DC 5276, later increased to 50% by the Board under DC 5276.
- The Board acknowledged plantar fibromas in the record but did not separately evaluate them or address whether DC 5284 ("Foot injuries, other") applied; it concluded DC 5284 was inapplicable because pes planus is a listed condition.
- The Board awarded a 50% rating under DC 5276 via the benefit-of-the-doubt rule, stating symptomatology was compensated under DC 5276 and that analogous ratings did not yield a higher evaluation.
- The Veterans Court affirmed, reasoning the Board reasonably selected DC 5276 over DC 5284 and invoking the rule against pyramiding as a basis to reject DC 5284.
- The Federal Circuit found (1) the Board erred by failing to consider DC 5284 for Scott’s unlisted plantar fibromas (per Yancy and Copeland distinctions between listed vs. unlisted conditions), and (2) the Veterans Court improperly supplied new rationales and factual findings (including pyramiding) that the Board never made.
- The Federal Circuit vacated and remanded for the Board to consider whether Scott’s unlisted condition may be rated by analogy under DC 5284 and to make any necessary factual findings.
Issues
| Issue | Scott's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether the Board was required to consider DC 5284 for Scott's unlisted plantar fibromas | Board must consider DC 5284 for unlisted foot conditions and separately evaluate plantar fibromas by analogy | DC 5284 not applicable because pes planus is listed and the Board considered DC 5284 relative to the case | Vacated: Board must consider DC 5284 for unlisted conditions; treating plantar fibromas as mere symptoms of pes planus without findings was legal error |
| Whether the Veterans Court improperly substituted its own rationales for the Board's decision | Veterans Court erred by relying on factual findings and pyramiding analysis not made by the Board | Veterans Court's reasoning affirmed the Board's selection of DC 5276 and relied on pyramiding concerns | Vacated: Veterans Court improperly supplied new factual rationales and may not remedy the Board's inadequate findings |
Key Cases Cited
- Conley v. Peake, 543 F.3d 1301 (Fed. Cir.) (treats application of law to undisputed facts as reviewable legal question)
- Harris v. Shinseki, 704 F.3d 946 (Fed. Cir.) (authority on appellate review of Veterans Court legal errors)
- Copeland v. McDonald, 27 Vet. App. 333 (Vet. App.) (DC 5284 does not apply to foot conditions specifically listed in the rating schedule)
- Yancy v. McDonald, 27 Vet. App. 484 (Vet. App.) (unlisted foot conditions may be rated by analogy under DC 5284)
- Allday v. Brown, 7 Vet. App. 517 (Vet. App.) (Board must provide adequate reasons or bases for factual findings)
- Fanning v. Brown, 4 Vet. App. 225 (Vet. App.) (Board must explain pyramiding conclusions)
- SEC v. Chenery Corp., 332 U.S. 194 (U.S.) (courts may not supply agency rationales the agency omitted)