Veteran Denied Higher Ratings and Referral for Extraschedular Consideration for Service-Connected Bilateral Upper Extremity Peripheral Neuropathy
CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied ratings in excess of 20 and 30 percent for the veteran’s service-connected bilateral upper extremity peripheral neuropathy, to include referral for extraschedular consideration. Despite evidence that the Veteran’s disability impaired multiple nerves, the Board found that the Veteran’s disability was most appropriately rated under diagnostic code 8615 which contemplates impairment of the median nerve.
Court Agrees with CCK that Board Failed to Consider Impairment of Multiple Nerves for Higher Rating and Erred in Denying Referral for Extraschedular Consideration on a Collective Basis
CCK argued, and the Court agreed, that the Board erred when it failed to consider whether the Veteran would be entitled to higher ratings under a diagnostic code that considered impairment of multiple nerves and muscles. The Court also agreed that the Board erred in denying referral for extraschedular consideration on a collective basis. It found the Board erred in failing to discuss whether the record reasonably raised the issue of entitlement, and instead relied on the fact that the veteran had not explicitly raised potential entitlement. Finally, the Court found that because the Board conceded that the record was not complete regarding evidence about the collective impact of the Veteran’s multiple service-connected disabilities, its decision to deny extraschedular referral based on that impact was premature. The Court vacated the Board’s decision and remanded the Veteran’s claim for further development.