Court Remands Extraschedular Rating Under 38 C.F.R. 3.321(B)(1) And Board Grants A 100% Rating
CCK recently appealed a Board of Veterans Appeals (BVA) decision that denied a Veteran entitlement to an increased rating for bilateral pes planus on an extraschedular basis. The evidence showed that the Veteran’s bilateral pes planus rendered him unable to work due to the severity of his symptoms. During the appeal process, the regional office referred the Veteran’s file to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1), who decided that an extraschedular rating was not warranted. The Board then issued a decision denying entitlement to an increased rating on an extraschedular basis.
The Court of Appeals for Veterans Claims (CAVC) held that the Board committed legal error for two reasons. First, instead of conducting a de novo review of the evidence as required, the Board considered the Director’s opinion as evidence of record to be weighed and evaluated, and even stated it was persuasive. Second, the Board failed to consider the collective impact of all the Veteran’s service-connected disabilities. The Court vacated the Board’s decision and remanded for appropriate action.
On remand from the Court, the Board found that an increased rating on an extraschedular basis was warranted due to the collective impact of the Veteran’s service-connected disabilities presenting an exceptional and unusual disability picture not accounted for in VA’s rating schedule. Further, the Board found that the Veteran’s service-connected disabilities caused marked interference with employability and accordingly granted a 100-percent rating on an extraschedular basis for the duration of the appeal period. Extraschedular grants under 38 C.F.R. § 3.321(b)(1) are extremely rare; Less than 50 are granted each year out of the 1.4 million claims filed each year. This was an unusual grant and you can read the redacted decision by clicking here.