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).”