Gardberg & Kemmerly, P.C. Attorneys at Law

Extra-Schedular Consideration

Extra-Schedular Consideration

Extra-schedular ratings evaluations are available in two distinct contexts: extra-schedular ratings for individual conditions and extra-schedular consideration for an evaluation of individual unemployability.

•1) Individual Disabilities-38 CFR § 3.321(b)(1)

For individual disabilities, often times the objective standards found in the rating schedule do not accurately reflect or capture a Veteran's disability. In recognition of this a determination of whether a Veteran is entitled to an extra-schedular under 38 CFR § 3.321(b)(1) can be evaluated by a three step process:

•i) The scheduler evaluation does not contemplate the Veteran's same symptomology or level of disability; and

•ii) The disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then

•iii) The case must be referred to an authorized office to determine whether an extra-schedular rating is warranted.

The Board or the Regional Office makes this initial determination before referring the case to the Under Secretary for Benefits or Director of Compensation Services to assign the specific extra-schedular rating.

•2) Individual Unemployability 38 C.F.R. § 4.16

A Veteran with a single service connected disability rated at 60 percent or higher; or two or more service connected disabilities with a combined rating 70 percent or higher with at least one disability rated at 40 percent disabling are eligible for a total disability rating based on individual unemployability. Veterans who meet these criteria are treated as having a 100 percent scheduler rating even though their combined rating is less that 100 percent.

However, Veterans who are unable to work due to service connected disabilities, but do not meet the scheduler requirements have another avenue of recourse. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards.

This means that Veterans who are unable obtain employment due to their service connected disabilities, but do not have a high compensation rating can still apply for, and be granted, entitlement to a total disability rating based on individual unemployability.

For questions regarding your VA disability claim and applying for a total disability rating due to individual unemployability, call the experienced veteran's disability attorneys at Gardberg & Kemmerly, P.C. Gardberg and Kemmerly, P.C. serve veterans the United States from our office in Mobile, Alabama. Contact us today at 251-343-1111 for a free case evaluation.

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