Board Review of Extraschedular Disability Ratings

Kuppamala v. McDonald, Opinion Number 14-2449, was decided December 30, 2015 and concerns the Board’s ability to review extraschedular disability ratings under 38 CFR Section 3.321(b)(1). 

The veteran had been rated 40% under the Diagnostic Code for ulcerative colitis, status post colectomy, which is the highest rating under DC 7329.  A referral to the Director of Compensation and Pension decided an extraschedular rating was warranted and awarded a 10% extraschedular rating which raised the veteran’s overall rating to 50%.

Before the Board, the veteran presented compelling evidence that he could not work due to the frequency of his bowel movements, their impact on his sleep, energy, memory, and concentration.  The Board appears to merely have repeated the Director’s analysis and upheld his decision without conducting its own independent review of the evidence.  The veteran appealed on this ground.  The Secretary responded by stating neither the Board or the Court has the ability to review extraschedular disability ratings.

The Court found that in fact the statute and regulation governing extraschedular ratings did not commit the assignment of a rating solely to the Director’s discretion.  The Court noted the Director in acting to decide extraschedular ratings is taking the place of a RO adjudicator and thus must comply with the same requirement as the RO and provide adequate reasons for the decision and a summary of the evidence considered.  The Court also noted that the Board in reviewing the Director’s decision reviews it de novo and may assign an extraschedular rating when appropriate.

Finally, in the case at hand, the Court noted the Board must provide an adequate statement of reasons or bases for its decision.  The Court agreed the Board “summarily concluded that the 50% disability rating is appropriate.  As [the veteran] points out, the Board did not discuss the VA medical examinations or address his symptoms of loss of appetite, weight loss, chronic fatigue, problems with memory and concentration, and lower back and leg pain—all of which he reports affect his ability to work.”  The Court then noted “The Board’s limited analysis frustrates the Court’s ability to review the Board’s assessment of [the veteran]’s disability picture” and remanded the case for review by the Board.

Decision by J. Schoelen, joined by J. Davis and Bartley.