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Precedential Decision: Increased Rating on an Extraschedular Basis

Precedential Decision: Increased Rating on an Extraschedular Basis

Summary of the Case

The Veteran served in the United States Army from August 1959 to December 1985.  In 1964, he was involved in a motor vehicle accident in which his left shoulder became disabled.  The Veteran initially filed for service-connected compensation in 1986 and was granted a non-compensable rating.  In 2007 and again in 2009, the Veteran underwent a complete shoulder replacement for which he was granted a temporary 100% rating.  Following these convalescent periods, his rating was reduced back to 20%.  He continued to appeal for an increased rating to the Board of Veterans’ Appeals, and was granted the maximum 50% rating under Diagnostic Code 5051 in 2016.  However, in this decision the Board also declined to refer the Veteran’s left shoulder disability for extraschedular consideration.

Board declines to refer left shoulder disability for extraschedular consideration

In September 2016, the Board granted the Veteran entitlement to the maximum schedular rating, 50%, for his left shoulder disability, but declined to refer this issue for extraschedular consideration. In its decision, the Board stated that it considered referral for extraschedular consideration, but ultimately found that the rating criteria and presently assigned disability evaluation most accurately represent the level of the Veteran’s left shoulder disability.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that declined to refer the Veteran’s left shoulder disability for extraschedular consideration. CCK argued that the Board failed to discuss all of the Veteran’s symptoms. Namely, the Board referred to severe painful motion, limited motion, and weakness, but did not discuss his inability to perform overhead tasks, grasp groceries or tools, and his excess fatigability. Additionally, CCK argued that the Board’s decision on extraschedular consideration was premature insofar as it also found that the record was insufficient to decide whether the Veteran is entitled to TDIU. Ultimately, CCK contended that the Board committed prejudicial error by not obtaining post-2013 VA medical records, which may show symptoms beyond the maximum schedular rating for his left shoulder disability.

CAVC agrees with CCK’s Arguments

 CCK argued, and the Court agreed, that it was premature for the Board to decline extraschedular consideration where the record was incomplete with respect to the severity of the Veteran’s left shoulder disability and unemployability. Accordingly, the Court remands the issue of entitlement to referral for extraschedular consideration of the left shoulder and calls for this re-adjudication to include a review of post-2013 VA medical records along with any private treatment records since 2009.

To read the Court’s decision, click here.

Category: Court Wins

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