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Extraschedular referral for back disability denial contained legal error

Extraschedular referral for back disability denial contained legal error


The Veteran served in the United States Army from May 1943 to November 1945.  He was granted service connection for a sacroiliac weakness with a noncompensable rating in January 1948.  In 1999, his sacroiliac weakness rating was increased to 10% effective May 10, 1999.  In 2011, the Veteran filed an increased rating claim, stating that his low back disability had worsened.  At this point, the Veteran was unable to walk, stand, and complete other activities of daily life due to back pain.  A 2012 rating decision continued his back disability at 10% and the Veteran appealed to the Board of Veterans’ Appeals.  In 2015, the Board remanded the Veteran’s back disability to obtain more information.

Board denied extraschedular referral for the Veteran’s back disability

In May 2016, the Board issued another decision granting an increased rating to 20% for the Veteran’s lumbar spine disability.  However, it denied referral for extraschedular consideration for a rating in excess of 20%.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of extraschedular referral for the Veteran’s back disability.  In its decision, the Board denied extraschedular referral because the Veteran’s disability did not present an exceptional or unusual disability picture to render impractical the application of the regular schedular standards.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board committed error. Specifically, the Board provided an inadequate statement of reasons and bases in denying extraschedular referral.  The Board did not discuss how the Veteran’s constant pain, inability to walk more than a few steps unassisted, need for help with all daily activities, and need for assistive devices was contemplated by his schedular rating.  The Veteran was also unable to drive, sit for long periods, or go up and down stairs.  The Board did not address any of this in its extraschedular analysis.

Additionally, the Board said that extraschedular referral was not warranted because the Veteran did not report lost time from work due to his back condition.  In explaining why the Board found it significant that the Veteran did not report missing work, the Board should have addressed the Veteran’s retirement.  Furthermore, the Board should have addressed whether the Veteran’s disability picture exhibits factors such as “marked interference with employment” or “frequent periods of hospitalization.”  Thus, the Court set aside the Board’s decision and remanded the case for further adjudication.

Category: Court Wins

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