CCK Successfully Appeals Board Decision to Deny Extraschedular Referral
Board Remands Issue of Entitlement to Higher Rating for a New Examination and Determines the Veteran’s Condition to not Warrant Extraschedular Referral
CCK successfully appealed a Board of Veterans’ Appeals decision denying the Veteran a higher rating for his prostate cancer. The Board found the Veteran’s condition was not so exceptional or unusual so as to warrant a referral of the claim for extraschedular consideration. The Board also remanded the issue of entitlement to a higher rating for a thoracic spine condition for a new examination to determine the severity of this condition, including whether it resulted in bowel or bladder impairment.
CCK Successfully Argues that the New Examination Could Result in Evidence that Warrants an Extraschedular Referral
On appeal, CCK argued that the Board erred in considering the question of extraschedular referral because the development on the issue of the rating for the back disorder could result in evidence demonstrating an extraschedular referral is warranted. The Court agreed that because the prostate cancer is rated based on voiding dysfunction and this new examination might show problems in this area, this new examination had the potential to demonstrate the need for extraschedular consideration based on the prostate cancer or due to the collective impact of multiple conditions. Therefore, the Court vacated the Board’s decision to the extent that it denied the Veteran extraschedular consideration and remanded this matter back to the Board for it to await the results of the new examination before ascertaining whether to refer the case for extraschedular review.
To read the Court’s decision, click here.
Category: Court Wins