Fed Cir 7/17/09, Thun V. Shinseki

[Wings]

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2009/7/17 08-7135 CAVC Thun v. Shinseki PRECEDENT

http://www.cafc.uscourts.gov/opinions/08-7135.pdf

Important, helpful case for adjudicating extra-schedular rating. The Regulations are clearly discussued. Wings

[john999]

Wings

Did this vet have a statement from a doctor that he was unemployable due to his SC condition? It does not sound like a very helpful decision for vets who don't have the required percentages for IU.

[Wings]

Wings

Did this vet have a statement from a doctor that he was unemployable due to his SC condition? It does not sound like a very helpful decision for vets who don't have the required percentages for IU.

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To answer your question; apparently not. Did you read the case? It was helpful to me in that the discussion makes clear --the "three part test" or threshold for adjudicating an extra-shedular rating. What could be more helpful, than to learn from another veteran's efforts (and even their mistakes)? ~Wings

[sharon]

This is not a good case to judge extra schedular. The vet was 10%. What happened to filing for an increase.

Extra schedular is designed for instances such as, a veteran is rated for a conditon(s) that combined will not add up to the schedular for IU. However, they render the veteran unemployable Example: 5310 Movement of Forefoot and toes can only be rated at 30%. So lets say the veteran is rated at 20% back condition, 30% headaches, 30% depression , 20% left knee, and 10% right knee for a total of 70%. The foot condition is what has rendered the veteran unemployable. In this case he/she would have to request an extra schedular rating. The pain and disabilies effect on that individual is taken into consideration.

[Wings]

This is not a good case to judge extra schedular. The vet was 10%. What happened to filing for an increase.

Extra schedular is designed for instances such as, a veteran is rated for a conditon(s) that combined will not add up to the schedular for IU. However, they render the veteran unemployable Example: 5310 Movement of Forefoot and toes can only be rated at 30%. So lets say the veteran is rated at 20% back condition, 30% headaches, 30% depression , 20% left knee, and 10% right knee for a total of 70%. The foot condition is what has rendered the veteran unemployable. In this case he/she would have to request an extra schedular rating. The pain and disabilies effect on that individual is taken into consideration.

When he was rated at 10%, he did file for an increased rating and extra-schedular. PTSD was increased to 70% (5 years later). This case is great for studying the threshold requirements for extra-schedular. ~Wings

Edited July 17, 2009 by Wings

[deltaj]

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2009/7/17 08-7135 CAVC Thun v. Shinseki PRECEDENT

http://www.cafc.uscourts.gov/opinions/08-7135.pdf

Important, helpful case for adjudicating extra-schedular rating. The Regulations are clearly discussued. Wings

One of the most interesting things about this court decision is that the decision quotes 38 CFR 3.321 (B) incompletely with an ellipsis in the middle. They delete out the word therefore in the middle of 38 CFR 3.321 (B) and replace the word therefore with three dots (an ellipsis), a symbol which is used when a word or phrase is left out of a direct quote. I think the word therefore used in the regulation as written compels the reader to consider the prior missing sentence which the court left out of the decision which begins with the phrase, "Ratings shall be based as far as practicable upon the average impairments of earning capacity . . ." It may be that some of that wording didn't exist at the time of one of the veteran's rating board decisions but to me it seems more likely that our government wants to overlook this language which is favorable to all veteran's seeking an extra schedular evaluation or any increase.

Edited July 21, 2009 by Pete53
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[broncovet]

This case is very, very bad news for Vets, IMHO. If the RO "lowballs" the claim, and gives a low disability rating, they can also refuse to consider the case for extra scheduler rating and use a generic, "this case is not unusual" in its reasons and basis for denying TDIU.