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Court Wins

CCK Argues Board Must Consider Combined Effect of Veteran’s Service-Connected Disabilities

April Donahower

May 31, 2017

Updated: June 20, 2024

Court Win - Increased Rating IVDS

Summary of the Case

The Veteran served from February 1977 to January 1997, including two years of service in Japan. The Veteran applied for service connection for onychomycosis in March 2010, and was subsequently granted service connection by the Regional Office (RO) with a 0% rating. The Veteran appealed the RO’s decision seeking an increased rating and perfected his appeal to the Board of Veterans’ Appeals.

Board Decides that Extraschedular Consideration is Not Warranted for Veteran’s Onychomycosis

CCK successfully represented the Veteran in an appeal to the Court of Appeals for Veterans Claims (CAVC) from a Board of Veterans’ Appeals decision which denied him an increased rating for his onychomycosis. The Board found that it was not necessary to refer the case for extraschedular consideration and that the record did not reasonably raise the issue of extraschedular consideration based on multiple service-connected disabilities.

Evidence in the Veteran’s record showed complaints of severe foot pain that limited the amount of time he could exercise with his students or stand in a classroom during his work as an ROTC instructor. He also indicated that his right shoulder disorder caused him a great deal of pain if he slept on it and limited him to four hours of sleep each night. He further reported extreme difficulty writing on the blackboard in class and exhaustion when he uses his right hand. Moreover, he stated that his neck and back conditions caused him to lose time from his job. Regarding his back, he said that back pain prevented him from participating in physical training in his job.

Court Agrees with CCK’s Argument

On appeal, CCK argued, and the Court agreed that the evidence noting the Veteran’s pain and limitations raised the question of whether extraschedular referral was required in light of the combined effects of multiple service-connected disabilities, and that the Board erred when it found that extraschedular referral was not warranted. The Court remanded the case back to the Board with instructions that it explain whether an extraschedular referral is needed based on all of the service-connected conditions.

Read the Court’s decision.

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

See more about April