Board Erred When It Relied on Veteran’s Employment to Deny Extraschedular Rating for Service-Connected Ankle Disability

CCK Law: Our Vital Role in Veterans Law

Summary of the Case

The Veteran served honorably in the United States Army from 1986 to 1993. During service, he was treated for recurrent ankle pain.  VA later awarded service connection for an ankle disability and assigned a 10% rating.  The Veteran disagreed with his rating, reporting that he suffered from daily ankle pain that required medication, use of a cane, and ankle wraps.  He also asserted missed days at work due to pain and swelling.  Throughout the appeal, the Veteran’s ankle pain worsened but he could not take more effective pain medication because it caused drowsiness.  The Board awarded a 20% rating in 2014, but denied a higher rating.

VA denies an extraschedular rating for ankle disability

The Veteran appealed the denial of a higher rating to this Court, which vacated the Board’s decision to the extent it denied extraschedular consideration.  In 2015, VA referred the Veteran’s claim to the Director of Compensation to determine whether an extraschedular rating was warranted.  The Director denied an extraschedular rating because he found the Veteran’s ankle disability was not severe enough to warrant a higher rating.  The Board issued another decision in 2016, in which it again denied an extraschedular rating.

CCK appeals to Court and Court agrees with CCK’s arguments

The Board denied an extraschedular rating because it found the Veteran’s ankle disability did not result in marked interference with employment.  It reasoned that the Veteran remained employed during the appeal period, that he required job accommodations due to a non-service-connected condition, and that there was no medical opinion demonstrating the Veteran experienced occupational impairment.

CCK argued, and the Court agreed, that the Board erred when it used an incorrect standard to find the Veteran did not experience marked interference with employment.  The Court agreed that the Board did not explain why the fact that the Veteran remained employed precluded marked interference with employment.  It also agreed that the Board erred when it relied only on the medical examinations of record, which stated the Veteran’s ankle did not impact his ability to work.  The Court noted that lay evidence regarding the Veteran’s occupational impairment was relevant and favorable to the claim.

The Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.