In denial of increased rating for degenerative disc disease, Board committed error

In denial of increased rating for degenerative disc disease, Board committed error

Board denied increased rating for degenerative disc disease

CCK successfully appealed a Board decision that denied the Veteran a rating above 10% for his service-connected degenerative disc disease of the low back.  On appeal, CCK argued that the Board erred by not ensuring VA provided the Veteran with adequate medical examinations as part of the development of his claim.  The Court agreed that the examinations were inadequate because the examiners failed to address whether flare-ups of the disability resulted in additional functional loss.  In addition, the Court agreed that contrary to the Board’s statement, the results of repetitive use tests cannot substitute for such findings.  Furthermore, the Court held that the Board failed to explain whether an extraschedular referral is needed in light of the collective impact of all of the Veteran’s service-connected disabilities.

CAVC agrees with CCK’s argument

Accordingly, the Court vacated the Board’s denial of an increased rating for the low back disability and remanded the case back to the Board for further proceedings.  On remand, the VA must provide a new examination that must include a proper discussion regarding whether extraschedular consideration is warranted.

To read the Court’s decision, click here.

Category: Veterans Law, Court Wins