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Board erred when it denied extraschedular referral for lower back disability

Board erred when it denied extraschedular referral for lower back disability

Summary of case

The Veteran served honorably on active duty in the United States Army from 1996 to 1999.  While in service, he fell and injured his back.  He has experienced radiating back pain since that time.  This pain prevents exercise, lifting heavy objects, and sitting for more than 10 minutes at a time.  He experiences difficulty driving and getting out of bed.  He also takes medication and uses a back brace.  The Veteran’s service-connected lower back disability  prevents him from performing his job duties.  In addition, his disability  has  caused him to take significant time  off work.

VA denies a higher rating for lower back disability

VA originally granted service connection for a lower back disability in 1999 and awarded a 10% rating.  In 2009, the Veteran requested a higher rating and the VA granted an increased rating to 20%, but denied a higher rating.  The Veteran disagreed with his rating and appealed his case to the Board.  The Board denied a rating in excess of 20% because he did not meet the range of motion limits.  It also denied entitlement to an extraschedular evaluation.  It reasoned that the Veteran’s use of a back brace was contemplated by the rating criteria, and thus, he did not exhibit an exceptional disability picture.

CCK Appeals to Court; CAVC agrees with CCK’s arguments

With CCK’s help, the Veteran appealed this decision to the Court.  CCK argued, and the Court agreed, that the Board’s extraschedular analysis was inadequate.  It agreed that the Board did not explain the basis for its conclusion that the use of a back brace does not render the scheduler standards impractical.  Although on appeal, VA reasoned that the use of a back brace was a common treatment for veterans who experience back pain.  The Court found this reasoning unpersuasive because the Board did not use that rationale in its decision.

The Court also agreed that the Board failed to consider whether the severity of the Veteran’s disability was contemplated by the 20% rating.  The Board did not provide any explanation for finding the 20% rating adequate.  Instead it simply listed the Veteran’s symptoms.

The Court vacated the Board’s decision that denied extraschedular referral for his low back disability, and remanded the Veteran’s claim for readjudication.

To read a copy of the Court’s decision, click here.

Category: Court Wins


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