Sometimes a Veteran may be entitled to a higher disability rating than is contemplated in the Schedule for Rating Disabilities when the VA’s schedule does not contemplate the level of symptoms or disability that the Veteran presents.
The VA’s Schedule for Rating Disabilities (hereinafter referred to as “Schedule”) is found in 38 C.F.R. Part 4, §§ 4.40 – 4.150. Separated into separate sections depending upon body system and condition, the Schedule lists a host of illnesses and injuries, designating particular rating percentages for different levels of symptomatology. For example, the schedule for non-arthritic knee issues generally centers on limits to range of motion. This setup is great for when this is the only condition presented by the Veteran. A problem arises when the Veteran also suffers with massive soft-tissue swelling, knee collapse, and frequent pain that interferes with work and results in severe sleeplessness. Fortunately, the VA is required to look into Extra-Schedular Ratings under certain circumstances when the VA’s schedule does not contemplate the level of symptoms or disability that the Veteran presents. Technically, Extra-Schedular Ratings are not separate claims but are part of the determination of a regular claim, however the VA will seldom offer them without the Veteran specifically requesting one. According to 38 C.F.R. § 3.321(b)(1), the Extra-Schedular Rating is for when a condition presents “such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.”[1]
The First Step Is To Compare the Veteran’s Symptoms To The Schedule Corresponding To Those Symptoms
In the knee example above, an appropriate Diagnostic Code (“hereinafter “DC”) could be DC 5261. Unfortunately, DC 5261 only contemplates limits of leg extension. DC 5003 allows for an automatic 10% rating if the limits of extension under DC 5261 are too low for compensation, but x-ray evidence must show degeneration of the joint and the maximum rating is only 10% per major joint. Another appropriate DC could be 5257, but that only contemplates joint instability. In this case, the Veteran should request an Extra-Schedular rating due to the exceptional or unusual disability picture his or her condition presents. If the rater agrees that the Veteran’s condition meets this first prong, the rater must proceed to the second step – evaluate whether the Veteran’s condition also exhibits “related factors as marked interference with employment or frequent periods of hospitalization.” The Court of Appeals for Veterans Claims (hereinafter “CAVC”) seems to waiver between either only allowing interference with employment and frequent hospitalization as the only two related factors allowed or allowing other related factors to be considered.[2] Since the CAVC is not consistent at this second step, and the Court of Appeals for the Federal Circuit has not given the CAVC any guidance on the matter, it is encouraged that Veterans and their representatives cite seemingly supportive case law if the “related factors” are not based on employment or hospitalization.[3]
The Federal Circuit has clarified that Extra-Schedular ratings do not have to rest upon a single condition and that the VA can view the cumulative effects of multiple conditions.[4] This is important because one claimed condition may meet the first prong, the schedule does not contemplate the level of symptoms or disability that the Veteran presents, while another condition may meet the second prong, significantly affecting employment or leading to hospitalization. Also, the VA cannot deny Extra-Schedular ratings if the record is significantly incomplete because Extra-Schedular consideration requires a complete picture of all service-connected disabilities.[5]
Extra-Schedular rating can significantly increase a Veteran’s overall rating percentage when a Veteran has conditions that exceed what is listed in the Schedule. There are specific criteria which need to be met, but once met this system allows a more just compensation.
[1] 38 CFR 3.321(b)(1).
[2] Johnston v. Brown, 10 Vet. App. 80, 87-88 (1997)(Steinberg, J., concurring).
[3] Id. at 87 (Moreover, the language of the regulation, listing interference with employment or frequent hospitalization as “such related factors” (emphasis added), seems to contemplate more than merely those two examples).
[4] Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed. Cir. 2014).
[5] Brambley v. Principi, 17 Vet. App. 20, 24 (2003).