Extra Schedular Rating Letter

[HvyGns38]

When writing an Extra Schedular Rating letter, what should I include in the letter?

Should I keep it as basic as possible? Such as just saying "I am requesting an extra schedular rating due to my service connected disabilities material interference with my employment."

Any advice would be great.

Thank you!!

[Teac]

The following was written by a former va rater.......

The issue of extra-schedular IU must first go through the office of the Director, Compensation and Pension Service in Washington. As for why extra-schedular IU is so rare, this is because it is actually an exception to an exception. 38 CFR Part 4 begins with the assumption that if you are totally disabled you will be evaluated at 100 percent. At the same time it was recognized that in a few cases it is possible that someone could be less than 100 percent but still disabled to the extent that they couldn't engage in gainful employment; therefore, the regulations provide for IU. All along IU was supposed to be reserved for those exceptional cases. In other words it was to be the exception, not the rule. To insure that this was the case the minimum evaluation criteria was put in place. The assumption was that even for those exceptional cases where the person was unemployable with less than 100 percent, there had to be a common sense cut off point which would keep renegade decision makers at VA from granting this benefit when it wasn't warranted.

So this leaves us with extra-schedular IU. If you follow the above you can see that this is for the few of the few. I think part of the problem is that the granting of IU has gotten so commonplace these days that many see it as a given if they can just get their disability evaluations up to to the minimum criteria. This was never how it was intended and I suspect that there will eventually be a crack down on IU.

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 and Pension 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 set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]”

[Philip Rogers]

Teac - please note that your last paragraph is essentially 4.16(b) and please also note that the last change was 10/8/96, which was the date 4.16C was removed. 4.16C stated: "In cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation ․ the mental disorder shall be assigned a 100 percent schedular evaluation."

I think the VA decided they were seeing too many 100%'s awarded under 4.16C and decided to make it harder for the claimant to reach 100%. 4.16(a) is very deceiving. Many unemployable vets come here seeking assistance, in gaining TDIU, because they believe they must meet those minimum requirements, when in fact it is not true. The VA sent me letter declining me TDIU and quoted only 4.16(a) in their reasons and bases. That is grossly misleading and the VA should be chastised for using those tactics. So, I'm sorry but I don't believe that 4.16(b) was meant for "the few of the few," but was meant for "all who fit that description."

jmo

pr

Edited October 18, 2010 by Philip Rogers

[Teac]

Teac - please note that your last paragraph is essentially 4.16(b) and please also note that the last change was 10/8/96, which was the date 4.16© was removed. 4.16© stated: "In cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation ․ the mental disorder shall be assigned a 100 percent schedular evaluation."

I think the VA decided they were seeing too many 100%'s awarded under 4.16© and decided to make it harder for the claimant to reach 100%. 4.16(a) is very deceiving. Many unemployable vets come here seeking assistance, in gaining TDIU, because they believe they must meet those minimum requirements, when in fact it is not true. The VA sent me letter declining me TDIU and quoted only 4.16(a) in their reasons and bases. That is grossly misleading and the VA should be chastised for using those tactics. So, I'm sorry but I don't believe that 4.16(b) was meant for "the few of the few," but was meant for "all who fit that description."

jmo

pr

I should have noted that I added the last para when I tried to explain what I had read. I knew that the former rater addressed this on another board. Rather his comments are entirely true or not.. well that is anyone's gues but it does make sence .

[HvyGns38]

Stillhere. . .sorry to hear about your condition. Keep hanging in there!!!

Thanks everyone for the advice!!!