CAVC Case 97-1178: Back

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · August 17, 1999 · NEBEKER, Chief Judge

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

What would this rating pay you? (2026 rates)

Official 2026 VA monthly compensation, including the 2.8% COLA increase.

Rating Married Children

per month · per year, tax-free

Dependent add-ons start at a 30% rating. Child-only and dependent-parent rates: see the full 2026 pay chart.

2026 base rates, all ratings (veteran alone)

Rating	Monthly (2026, incl. 2.8% COLA)
10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Outcome

Remanded / Denied / Reversed / Vacated

Decision Date

August 17, 1999

Judge

NEBEKER, Chief Judge

Service Era

Not specified

Conditions Claimed

Back Hip TDIU Eye Arthritis Radiculopathy

Issues on Appeal

BackHipTDIUEyeArthritisRadiculopathy

Why It Was Decided This Way

In an April 1978 BVA decision, the Board denied increased ratings for the veteran's already service-connected Pott's disease (inactive and previously rated as 60% disabling pursuant to 38 C.

The Board noted that the combined rating for the veteran's service- connected disabilities was 60% and also denied a TDIU rating.

In a March 1996 BVA decision, the Board denied the veteran's left-leg-wound and chest-scar rating-increase claims (R.

In the May 22, 1997, BVA decision here on appeal, the Board denied a rating above the current 60% for Pott's disease, including consideration of an extraschedular rating under 38 C.

The appellant contends that the Board erred in failing to provide an adequate statement of reasons or bases as to his Pott's disease schedular-rating- increase claim (including a failure to consider his pain) and in relying on an examination that was inadequate for rating purposes.

The Secretary concedes that the Board failed to provide an adequate statement of reasons or bases to support its denial of the Pott's disease rating-increase claim because the Board determined that DC 5286 did not apply and that DC 5289 did apply (even though it then confirmed the 60% schedular rating, which exceeded the maximum allowed under DC 5289).

§§ 7104(b) and 7105(c) prohibiting reopening of previously disallowed claims except upon new and material evidence under 38 U.

Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the section 5107(a) duty to assist may require a thorough and contemporaneous medical examination.

Authorities Cited

Allday v. BrownAustin v. BrownBagwell v. BrownBielby v. BrownBoutwell v. WestBrannon v. WestBrewer v. WestChisem v. BrownFletcher v. DerwinskiGabrielson v. BrownGilbert v. DerwinskiGonzales v. United StatesHarder v. BrownHazan v. GoberHodge v. WestIsenbart v. BrownKellar v. BrownKutscherousky v. WestLathan v. BrownLittke v. DerwinskiLovelace v. DerwinskiLuca v. BrownQuiamco v. BrownSalgado v. BrownSee Arms v. WestSee Beaty v. BrownSee Caluza v. BrownSee Esteban v. BrownSee Marsh v. WestSee Proscelle v. Derwinski

Regulations Cited (38 CFR / 38 USC)

38 CFR 14.50938 CFR 19.938 CFR 19.9 (1998)38 CFR 20.901(a)38 CFR 20.901(c) (1998)38 CFR 20.901(d)38 CFR 3.155 (1998)38 CFR 3.159 (1998)38 CFR 3.312(c)38 CFR 3.32138 CFR 3.321(a) (1998)38 CFR 3.321(b)38 CFR 3.321(b) (1996)38 CFR 3.321(b) (1998)38 CFR 3.321(b)(1)38 CFR 3.344(a) (1998)38 CFR 3.951(b)38 CFR 3.951(b) (1998)38 CFR 4.138 CFR 4.1 (1998)

Denial Type

Credibility|Not New Material|Duty To Assist|Inadequate Exam

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