The Board Erred In Its Denial Of Extraschedular Consideration

The Board Erred In Its Denial Of Extraschedular Consideration

The Court remanded a Board decision that denied the Veteran a rating higher than 20 percent for his service-connected diabetes mellitus. The Board found that the Veteran did not meet a higher schedular rating because his disability did not require regulation of activity. It then denied extraschedular referral because it found the 20% rating criteria adequately described the Veteran’s symptoms. But the Veteran argued, and the Court agreed, that the Board erred when it did not explain how the 20% rating contemplated the Veteran’s hypoglycemic episodes at home and at work, during which he exhibited confusion, personality change, blurred vision, motor weakness, sweating and racing heart. The Court found that the 20% rating criteria only accounts for his insulin dependence and restricted diet.

The Court also found the Board erred when it concluded that the Veteran’s diabetes did not result in marked interference with employment because the Veteran was employed full-time. It noted, “[f]ull-time employment is not the benchmark for refusing extraschedular consideration.” Rather, the Board should have discussed evidence that the Veteran’s diabetes required him to take breaks at work, and it should have determined whether these difficulties rose to the level of marked interference with employment.

Category: Veterans Law, Court Wins