Board Errs in Denying Higher Ratings for Low Back Disability and Sciatica

Board Errs in Denying Higher Ratings for Low Back Disability and Sciatica

Board Decision Denies Higher Ratings for Low Back Disability and Sciatica Based on VA Examination

CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied a veteran a rating in excess of 20 percent for his low back disability for the time period from 2008 to 2012, and ratings in excess of 10%, 20%, and 40% for his right lower extremity sciatica. The Board based the Veteran’s 20 percent rating for his back on the fact that he was able forward flex to 40 degrees during an August 2012 VA examination.

CCK Successfully Argues that the Board Failed to Address Favorable Material Evidence Concerning the Veteran’s Functional Loss

CCK argued, and the Court agreed, that the Board erred in denying higher ratings. Regarding the Veteran’s low back disability rating, the Court found the Board failed to address favorable material evidence about the Veteran’s functional loss. It also failed to explain why the Veteran’s functional loss was not equivalent to additional ROM loss, or whether pain, decreased motion, stiffness approximated the criteria for the next higher rating.

For the Veteran’s sciatica prior to 2012, the Board failed to address evidence of sharp, constant pain that rendered him unable to sit, squat, or lift, and didn’t explain why the vet’s condition was only mild and moderate. The Court agreed that the Board’s treatment of the issue of a rating in excess of 40% for sciatica from 2012 was confusing. In its decision, the Board both denied a rating higher than 40% but also remanded the same issue for additional development. In light of this, the Court modified the Board decision to reflect its remand order.

Court Agrees with CCK that the Board Erred in Denying Referral for Extraschedular Consideration

Finally, the Court agreed the Board erred when it denied referral for extraschedular consideration. It found the Board’s reasons were unclear for requiring the veteran to demonstrate the collective impact of his multiple disability resulted in an additional disability. The Court vacated the Board’s decision and remanded the claim for further proceedings.

Category: Court Wins