Denial of referral for extraschedular consideration for diabetes was premature

Denial of referral for extraschedular consideration for diabetes was premature

Summary

Mr. Pittman served on active duty in the Army from August 1969 to March 1971, including service in Vietnam from January 1970 to March 1971. He was granted service connection for diabetes mellitus type II associated with herbicide exposure with a 10% rating effective from the date of his February 2008 claim. The Veteran filed an increased rating claim for his service-connected diabetes mellitus in July of 2009. VA initially denied this claim, and the Veteran filed a notice of disagreement. In July of 2010, VA increased his rating from 10 to 20% from October 2009.

 

Board denies increased ratings for diabetes mellitus

Mr. Pittman appealed to the Board of Veterans’ Appeals. In December of 2016, the Board denied a rating in excess of 10% prior to October 2009, and a rating in excess of 20% thereafter for the Veteran’s service-connected diabetes mellitus.

 

CCK appeals to the Court

CCK successfully appealed the denial for an increased rating for Mr. Pittman’s service-connected diabetes mellitus to the Court of Appeals for Veterans Claims (CAVC). In its decision, the Board denied the Veteran entitlement to extraschedular consideration for his service-connected diabetes mellitus. It also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran’s diabetes mellitus claim was intertwined with the issue of entitlement to TDIU.

 

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board’s denial of referral for extraschedular consideration was premature. The Board denied referral for extraschedular consideration of Mr. Pittman’s diabetes but at the same time, it remanded the issue of entitlement to TDIU. The remand instructions required a VA examiner to identify the limitations imposed on the Veteran as a result of his service-connected disabilities. It also required VA to obtain private medical records. This development could provide a more comprehensive view of the Veteran’s disability picture. The Court therefore concluded that the Board should not have decided whether extraschedular referral is warranted until the development required in the remand portion of the Board’s decision was complete.

Category: Court Wins