General Overview of the Law
When a veteran’s disability does not meet the requirements for the next higher schedular rating, but the evidence indicates his or her disability is more severe than the current rating, a veteran may be entitled to an exam and an extraschedular rating under 38 C.F.R. § 3.321.
Th BVA must first compare the veteran’s symptoms with the assigned schedular rating. Yancy v. McDonald, 27 Vet.App. 484 (2016). If the schedular rating criteria do not contemplate the symptoms and functional effects the veteran experiences, the BVA must refer to the veteran for an extraschedular rating.
The purpose of extraschedular rating is to fill a gap when the veteran’s disability picture does not fit precisely within the established schedular criteria: the extraschedular rating is meant to account for situations in which a veteran's disability does not cause total unemployability but is still inadequately rated under the schedular criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014)
Facts & BVA Decision.
Mr. Spellers is rated 10% for bilateral moderate incomplete paralysis of the sciatic nerve under DC 8520 (39 C.F.R. 4.124(a)).
Mr. Spellers relies on a cane for walking short distances and a walker for longer distances with frequent resting.
It rates the condition as follows:
10% Mild incomplete paralysis
205 Moderate incomplete paralysis
40% Moderately severe incomplete paralysis
60% Severe incomplete paralysis with marked muscular atrophy
80% Complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and/or flexion of the knee is weakened or (very rarely) lost.
DC 8520 does not mention the use of assistive devices in its rating criteria. Therefore, Mr. Spellers believes he is entitled to an extraschedular rating based on the additional limitation that results from the use of a walker and cane.
The BVA held the symptoms that necessitate use of an assistive device are fully contemplated by the rating criteria; because the use of such assistive device directly addresses a veteran’s functional limitation, the veteran is not entitled to an extraschedular rating for the use of an assistive device.
The Veteran argues that the BVA improperly interpreted 38 C.F.R. § 4.124a (DC 8520) and 38 C.F.R. §3.321(b) when it found that an extraschedular rating is not permissible because the symptoms that necessitate use of a walker and cane are contemplated in the rating criteria implies that the use of assistive devices are also contemplated.
The Secretary argues that the BVA correctly rejected an extraschedular rating when it applied 38 C.F.R. 4.124(a)(DC 8520) because the use of a cane or walker is not a symptom of Mr. Speller's condition but instead a device used to ameliorate the effects of a symptom such as instability. 38 C.F.R. § 4.124(a), DC 8520.
He argues that the use of a cane or crutch are not separately-compensable symptoms any more than putting a cast on a broken arm would be separately compensable beyond the rating criteria in the schedule for rating the arm.
Court's Statement of the Issue
How, if at all, should the use of assistive devices (e.g., a cane or walker) be considered as part of the Board's analysis of whether referral for consideration for an extraschedular rating under § 3.321(b) is warranted?
Judge Margaret Bartley (link to bio on Court webpage)
Judge Michael P. Allen (link to bio on Court webpage)
Judge Amanda L. Meredith (link to bio on Court webpage)
Tessa S. Stillings, Attorney on the Briefs [Chisholm, Chisholm and Kilpatrick]
Dana N. Weiner, Attorney at Argument [Chisholm, Chisholm and Kilpatrick]
Anthony D. Ortiz, Attorney on the Briefs and at Argument