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Board Erred in Denying Referral for Extraschedular Consideration, CCK Argues at Court

Summary of the Case

Mr. Spellers served honorably in the United States Army.  In January of 2006, VA granted service connection for a low back strain and awarded a 20 percent disability rating.  Following several VA examinations, Mr. Spellers was later awarded 10 percent disability ratings for sciatica of the bilateral lower extremities in November of 2009.  He appealed this decision only to the extent that he had been denied referral for consideration of an extraschedular rating and was eventually denied by the Board.

Board denies referral for extraschedular consideration

In November of 2016, the Board issued a decision that denied referral for consideration of an extraschedular rating under 38 CFR § 3.321(b)(1) for his sciatica of the bilateral lower extremities.  In its decision, the Board considered Mr. Spellers’ use of a walker and concluded that, although not specifically listed in the rating criteria for evaluating neurologic disabilities, assistive devices are provided to alleviate the presence of symptoms and functional limitations caused by an individual’s disability.  Furthermore, the Board found that the symptoms that required the use of his assistive device were fully contemplated by the rating criteria and address his functional limitations.  The Board concluded that the use of such a device does not create an exceptional disability picture such that extraschedular consideration is warranted.  Additionally, the Board considered Mr. Spellers’ use of pain medication and its side effects in connection with an extraschedular analysis.  However, the Board found that his reports were not credible due to his failure to report certain side effects during the course of treatment at various times.

CCK presents oral argument at Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied referral for consideration of an extraschedular rating.  In April of 2018, CCK delivered an oral argument before the Court in Washington, D.C.  CCK argued that the Board failed to explain how the rating criteria in DC 8520 contemplates the use of assistive devices for Mr. Spellers’ bilateral sciatica such that extraschedular referral is not warranted.  CCK asserted that the Board misinterpreted 38 CFR § 3.321 in finding that assistive devices address functional limitations that are contemplated by the rating criteria.  CCK further argued that while the symptoms that led Mr. Spellers to use an assistive device in the first place may be contemplated by the rating schedule, the effects of such use are not.  Additionally, CCK held that the Board failed to provide an adequate statement of reasons and bases for finding that Mr. Spellers was not credible to report the side effects of his pain medication and then denying extraschedular referral for that reason.

Court remands the case back to the Board

CCK argued, and the Court agreed, that the Board failed to provide adequate reasons and bases for its adverse credibility determination.  Here, the Board relied on the fact that Mr. Spellers had not reported side effects of his medication.  However, the Court affirmed that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by medical evidence.  The Court further noted that the Board also relied on a July 2009 patient agreement that Mr. Spellers signed, obligating him to report significant side effects.  Importantly, this agreement provided Mr. Spellers with a list of possible side effects.  The Court held that it was not clear whether Mr. Spellers understood that he needed to report symptoms not included in the list or why the Board appeared to believe that he had such an understanding.  The Court did not find that the Board erred in denying referral for extraschedular consideration based on the use of a walker.  Instead, the Court concluded that the symptoms and severity of sciatica that require the use of an assistive device are adequately contemplated by the rating criteria under DC 8520.  Nonetheless, the Court held that a remand was warranted for the Board to provide an adequate statement of reasons and bases in assessing the credibility regarding medication side effects and whether those side effects require extraschedular referral.

 

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Category: Oral Arguments

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