Board Fails to Account for Effect of Knee Disability on Veteran’s Weight in Decision to Award Extraschedular Rating

Board Fails to Account for Effect of Knee Disability on Veteran’s Weight in Decision to Award Extraschedular Rating

Board Determines that Veteran’s Knee Disability Does not Warrant an Extraschedular Rating

CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied the Veteran an increased rating for his knee disability on an extraschedular basis. In its decision, the Board found the Veteran’s knee disability was manifested by pain, stiffness, swelling, instability, lack of endurance, and impaired ability to walk. It then determined the schedular rating criteria reasonably described his disability picture.

CCK Successfully Argues that the Veteran’s Obesity May be Relevant to the Issue of an Extraschedular Rating for the Knee Disability

CCK argued, and the Court agreed, that the Board erred when it failed to consider the effect of the Veteran’s knee disability on his weight. He was diagnosed as being morbidly obese, and his attempts to lose weight were hampered by the limited mobility of his knee, which prevented him from engaging in cardiovascular and fitness training. OGC announced that if “obesity resulting from a service-connected disease or injury is found to produce impairment beyond that contemplated by the applicable provisions of VA’s rating schedule, VA may consider an extraschedular rating” based on the service-connected impairment. Thus, the Veteran’s obesity may be relevant to the issue of an extraschedular rating for his knee disability.

The Court vacated the Board’s decision and remanded the case back to the Board to determine whether the Veteran’s obesity results from his knee impairment and, if so, whether it produces impairment beyond that contemplated by the rating schedule for the L knee disability — factfinding that the Court determined is best addressed by VA in the first instance.

Category: Court Wins