Board erred in denying PGW Vet separate disability ratings

Board erred in denying PGW Vet separate disability ratings

Summary

The Veteran was rated at 40-percent for symptoms arising from his service in Saudi Arabia.  These symptoms included chest pain, joint pain, muscle aches, fatigue, sleep disturbance, headaches, and irritable bowel symptoms.  His symptoms were regarded as an undiagnosed illness and rated by analogy to fibromyalgia under diagnostic code 5025.  CCK argued that the Board erred in denying separate disability ratings for IBS and headaches.  CCK also argued that the Board erred when it failed to consider separate disability ratings for each painful joint.

Outcome

The Court held that the Board erred in denying separate disability ratings for IBS and headaches under 38 C.F.R. § 4.114, DC 7319 and 38 C.F.R. § 4.124a, DC 8100, respectively.  It also held that the Board failed to consider separate disability ratings for each of his painful joints under 38 C.F.R. § 4.59.

Regarding IBS, the Board did not explain why the Veteran’s bowel symptoms were not ratable by analogy to another diagnostic code associated with the digestive system.  The Board failed to consider a VA examiner’s opinion that the Veteran’s medication indicated he suffered from headaches severe enough to cause him to stop work.  Regarding each of the Veteran’s painful joints, the Court noted that the Board made no credibility finding with respect to lay statements of joint pain observed by the Veteran’s coworkers and wife.  Thus, the Court determined it must treat the lay statements as both competent and probative.  Therefore, the Board was required to consider rating the Veteran’s joint pain per each separate joint.  The Court set aside the Board’s decision and remanded for further proceedings.

To read the Court’s decision, click here.

Category: Veterans Law, Court Wins