An extra-schedular rating is the VA’s recognition that its generalized rating criteria does not always adequately capture a veteran’s true disability.
The determination as to whether an extra-schedular rating is necessary includes three steps:
In order to show marked interference with employment, the VA encourages veterans and their representatives to submit medical and vocational evidence related to the degree of impairment to work they experience as a result of their disabilities.
In Smallwood v. Brown, the Court of Appeals for Veterans Claims found that the Board of Veterans’ Appeals erred when it failed to consider an appellant’s foot disability for an extra-schedular rating, stating, “The appellant’s foot disability is excreting a particularly foul-smelling drainage that seems to suggest that he may qualify as an exceptional case under 3.321.” The Court indicated that because the Board specifically found the foot odor permeated the exam room, this would be sufficient evidence to show preclusion of employment in a confined space with other workers.
The Court in Fisher v. Principi found that the Board had erred when it did not send the veteran’s case to the Director of VA’s Compensation and Pension Service for extra-schedular consideration of TDIU. The appellant’s employment history, heavy medications he took for his service-connected hypertension and illiteracy were all factors impacting his ability to work. The Court found these factors were “extraneous circumstances” and may have led the Director of VA’s Compensation and Pension Service to consider extra-schedular total rating despite veteran’s relatively low rating.
If the VA refuses to increase your disability rating when you are unable to work or make frequent hospital visits, you may qualify for an extra-schedular rating.
Our team of veterans’ law attorneys has been helping veterans increase ratings for decades. Founded by three-tour Vietnam veteran John Stevens Berry Sr., Berry Law Firm’s focus has always been on serving those who serve. We take pride in the fact that many of our attorneys and staff are themselves military veterans.
If you need assistance appealing a VA decision, contact us today.
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