10-04 342
10-04 342
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty 1974–1977; appealed VA regional office decisions granting/maintaining 10% ratings for right thumb, right thumb scar, and right wrist.
- Board previously denied increased ratings and extraschedular referral in April 2016; Veteran appealed to the Court of Appeals for Veterans Claims.
- Court granted a partial joint motion for remand (JMR) in June 2017 vacating Board denials as to (1) increased rating for right thumb, (2) extraschedular referral for right thumb and right wrist, and (3) extraschedular consideration of collective impact of service‑connected disabilities.
- JMR found the Board did not adequately analyze Thun factors (whether schedular criteria are inadequate and whether exceptional factors such as marked interference with employment exist) and relied on an inadequate February 2015 VA exam.
- The Board remanded for VA to obtain updated records, provide a Correia‑compliant VA examination addressing active/passive and weight‑bearing/non‑weight‑bearing ROM and pain‑related ROM loss, and then refer the claims for extraschedular consideration by VA Compensation Service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether schedular criteria are inadequate for right thumb (need extraschedular referral) | Veteran alleges functional limitations (cannot hold pen, lift cup), raising collective effects beyond schedular ratings | Board previously found ratings adequate and denied extraschedular referral | Remanded: Board must obtain adequate exam and then refer to Director of Compensation Service if Thun criteria met |
| Whether schedular criteria are inadequate for right wrist (need extraschedular referral) | Veteran raised collective functional limitations attributable to wrist | Board previously denied extraschedular referral | Remanded for development and referral as above |
| Adequacy of February 2015 VA examination | Exam failed to address ROM loss due to pain and did not comply with Correia testing requirements | VA relied on that exam in prior adjudication | Remanded: new exam required that follows Correia and addresses pain, flare‑ups, repeated use, and provides best estimate of additional ROM limitation |
Key Cases Cited
- Thun v. Peake, 22 Vet. App. 111 (establishes two‑step extraschedular analysis: schedular inadequacy then exceptional factors)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (collective effects of multiple disabilities may warrant extraschedular evaluation)
- Correia v. McDonald, 28 Vet. App. 158 (VA joint ROM exams must test active/passive and weight‑bearing/non‑weight‑bearing where possible)
- Floyd v. Brown, 9 Vet. App. 88 (Board may not grant extraschedular ratings in first instance; referral required)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant may submit additional evidence after remand)