CAVC Issues Decision in Kuppamala v. McDonald

On December 30, 2015 the Court of Appeals for Veterans Claims (CAVC) issued a precedential decision in Kuppamala v. McDonald (No. 14-2449).  The decision can be accessed at the following link: https://www.uscourts.cavc.gov/documents/Kuppamala14-2449.pdf.

The holding of the decision is finite and really only applies to instances where the Department of Veterans Affairs (DVA) has referred a question to the Director of Compensation Service [hereinafter “Director”] for consideration of extraschedular disability rating under 38 C.F.R. § 3.321(b)(1).  The CAVC held that — while the Board of Veterans’ Appeals cannot assign an extraschedular rating in the first instance (well established in prior cases) — the BVA is required to review a determination of from the Director under Section 3.321(b), and conduct a de novo review once subject to BVA jurisdiction.  In short, the Director’s determination is not wholly discretionary and, therefore, not insulated from review by the BVA.

Sometimes when I read court decisions, it is not the specific holding that I feel is most relevant.  Instead, its the tone of the decision, dicta, or the footnotes included.  This is the case in Kuppamala.  The CAVC again noted that the DVA still does not have specific guidance or clear definition of the term “substantially gainful occupation.”  This term of art is the substantive basis for the determination of increase due to individual unemployability (TDIU).  Footnote 6 states,  “Despite repeated encouragement from this Court, VA has provided only limited guidance regarding the definition of “substantially gainful occupation” in § 4.16.  See Faust v. West,13 Vet. App. 342, 355 (2000) (recognizing that “the Secretary has yet to issue a clear definition of substantially gainful employment, despite the Court’s encouragement to that effect” and subsequently offering a definition “for the purpose of dealing with the facts of this case”); Moore (Robert) v. Derwinski, 1 Vet. App. 356, 359 (1991) (calling for a clear definition of “unemployability” but declining to impose a Court-created rule).”

 

 

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Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

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