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Ankle disability denial failed to consider difficulty with walking & standing

Summary

The Veteran served on active duty in the United States Army from September to October 1975.  While in service, he injured his left ankle.  He was ultimately awarded service-connected compensation for his injury, and assigned a 10% rating.  The Veteran’s service-connected ankle disability caused constant pain at a level of ten out of ten, impacted his ability to sleep, and made it difficult to walk more than three blocks or stand longer than 15 minutes.  He used a cane to assist with walking and had difficulty going up stairs.  In March 2006, the Veteran applied for an increased rating for his service-connected ankle disability, which the Regional Office denied.  The Veteran appealed this denial to the Board of Veterans’ Appeals.

Board denied increased rating for service-connected ankle disability

In February 2016, the Board denied the Veteran an increased rating for his service-connected left ankle, including on an extraschedular basis. In its decision, the Board determined that the Veteran’s 10% rating contemplated all of the functional loss caused by his disability.  The Board determined that extraschedular referral to the Director of Compensation was not warranted because the rating schedule contemplates pain and limited range of motion.  CCK appealed this denial to the Court of Appeals for Veterans Claims (CAVC).

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to provide an adequate statement of reasons or bases for denying the Veteran an increased rating for his left ankle.  Specifically, the Board’s decision to deny referral for extraschedular consideration to the Director of Compensation was insufficient.  The Court held that the Board erred when it failed to consider the Veteran’s symptoms of constant pain and difficulty with walking and standing, as the pertinent diagnostic code appeared to compensate solely for a veteran’s limitation of motion.  The Court therefore vacated the Board’s decision, and remanded the Veteran’s claim back to the Board for consideration of this evidence.

To read the Court’s decision, click here. 

Category: Court Wins

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