Board Erred When it Failed to Properly Consider Extraschedular Evaluation

Board Erred When it Failed to Properly Consider Extraschedular Evaluation

Background

The Veteran served honorably in the United States Army from July 1973 through July 1975.  During servi27ce he sustained an open fracture of his leg and remained hospitalized for six months.  He continued to experience pain in his right leg after service.  VA ultimately granted him service connection for his disability in 1990.

In 2008, the Veteran sought an increased rating for his right leg disability, noting that his condition had worsened.  He experienced pain, weakness, stiffness, swelling, instability, and giving way of his right leg and knee. Walking, lifting, and climbing stairs caused severe flare-ups of pain.  He required a cane to walk, but still limped.  His disability interfered with his ability to complete his work on a timely basis.  His right leg fracture led to a prolonged period of altered weight-bearing and increased mechanical stress on his knee and ankle joints.  He was eventually awarded service connection for arthritis in his right knee and right ankle secondary to his right leg fracture.  Combined, his right leg disabilities prevented him from walking for prolonged periods and limited his activities.

The Board issued a decision in April of 2016 declining to refer the Veteran’s case for extraschedular evaluation.  It concluded that the Veteran’s service-connected disabilities had no combined effect or collective impact that created an exceptional or unusual circumstance which would render the schedular ratings inadequate.  It further found the schedular rating criteria were adequate to evaluate the Veteran’s service-connected disabilities.

CCK appeals extraschedular denial to the Court

CCK appealed the Board’s denial of a referral for extraschedular consideration to the Court of Appeals for Veterans Claims.  The Board baldly concluded that there was no indication that the collective impact or combined effect of more than one of the Veteran’s service-connected disabilities created an exceptional or unusual disability picture.  CCK argued, and the Court agreed, that the Board erred when it failed to provide adequate reasons or bases for its finding.

The Court rejected the Secretary’s argument that the collective impact of the Veteran’s disabilities was not exceptional or unusual, finding the Secretary’s arguments could not remedy the Board’s inadequate analysis.  Accordingly, the Court set aside the Board’s denial of a referral for extraschedular evaluation.  On remand, the Board must reconsider the issue of extraschedular referral and provide an adequate statement of reasons and bases supporting its decision.

To read the Court’s decision, click here. 

Category: Court Wins