The Board erred when it denied referral for extraschedular consideration

The Board erred when it denied referral for extraschedular consideration

Board declined to refer for extraschedular consideration

CCK successfully appealed to the CAVC a Board decision that declined to refer the Veteran’s cervical spine disability for extraschedular consideration.  CCK argued that the Board failed to provide an adequate statement of reasons or bases for its decision.  Pursuant to Yancy v. McDonald, 27 Vet.App. 484, 495 (2016), in determining whether extraschedular referral is warranted, the Board must consider the collective impact of multiple service-connected disabilities whenever that issue is expressly raised by the claimant or reasonably raised by evidence of record.

The evidence showed that the appellant expressly stated that he was unable to pursue his previous employment due to the collective impact of his service-connected disabilities.  Additionally, the record contained evidence that appellant’s service-connected knee, radiculopathy, and cervical spine disabilities combined to cause limited motion of the neck, less movement and weakened movement overall, limited motion of the extremities, difficulties turning and rotating, and pain in the knee, neck, and arm.

Court finds the Board’s reasons and bases to be inadequate

In its decision, the Court stated, “[t]he entirety of the Board’s discussion of this issue consisted of its conclusory statement that a referral for extraschedular consideration was not warranted.”  Thus, the Court determined that the Board inadequately addressed the combined or collected effect of the Veteran’s service-connected disabilities.    The Board’s failure to address the favorable evidence in its decision rendered its statement of reasons or bases inadequate.  The Court set aside the Board’s decision and remanded the case for further proceedings.

To read the Court’s decision, click here.

Category: Veterans Law, Court Wins

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