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CCK Wins Oral Argument After Board Denies Increased Rating for Diabetes on Extraschedular Basis

Summary of the Case

Mr. Petermann served in the United States Army from September 1988 to September 2010.  During his separation examination, he reported having episodes of diabetic ketoacidosis, tingling and numbness in his hands due to low blood sugar, and the use of an insulin pump.  In May of 2011, Mr. Petermann was granted service connection for diabetes mellitus type 2 with a 20 percent disability rating.  He continued to appeal this decision to the Board of Veterans’ Appeals.  In an October 2015 Board of Veterans’ Appeals hearing, the Veteran stated that he was treated by a paramedic in 2010 for a hypoglycemic reaction.  The Board granted an increased rating of 40% for his diabetes, but denied a rating in excess of that.

Board denies increased rating for diabetes and declines extraschedular referral

On February 11, 2016, the Board issued a decision that denied an increased rating for Mr. Petermann’s diabetes and declined to refer this issue for extraschedular consideration.  The Board found that Mr. Petermann’s diabetes has been managed by insulin, restricted diet, and regulation of activities.  However, his symptomatology does not meet the schedular requirements for the 60 percent disability rating.  Additionally, the Board held that this issue did not warrant extraschedular consideration because the manifestations of his diabetes are contemplated by the schedular criteria and his 40 percent rating represents the average impairment in earning capacity resulting from his diabetes.

CCK presents an oral argument at Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied an increased rating for Mr. Petermann’s diabetes and declined to refer this issue for extraschedular consideration.  In June of 2017, CCK obtained a decision from the Court that vacated the Board’s February 2016 decision and remanded the case back to the Board.  However, VA filed a motion for reconsideration in July of 2017.  Subsequently, in February of 2018, CCK delivered an oral argument before the Court in Washington, D.C.  CCK argued that the Board’s finding that all of Mr. Petermann’s diabetic symptoms are contemplated by the assigned 40 percent rating is contrary to the facts and misinterprets the extraschedular referral analysis.  CCK did acknowledge that Mr. Petermann cannot attain a higher rating by more nearly approximating that rating under DC 7913 because of its successive criteria.  Nonetheless, CCK asserted that the extraschedular referral was warranted to consider Mr. Petermann’s uncompensated symptoms.

Court agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in finding that all of Mr. Petermann’s diabetes symptoms were contemplated by the 40 percent disability rating criteria.  The Court held that because the rating criteria for diabetes are successive, his 40 percent disability rating only contemplates his insulin use, restricted diet, and regulation of activities, not the other symptoms that are potentially relevant to a 60 percent rating.  Accordingly, the Court decided that a remand was required for the Board to provide an adequate statement of reasons and bases for its extraschedular consideration.

To read the Court’s decision, click here. 

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Category: Oral Arguments

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