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Tdiu Extra Schedule


RUREADY
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Question

Do anyone know whether there is a va regulation that say " the RO cannot

ask for your claim to be consider or ask for extra-scheduler. I know I read this

somewhere but cant find where. A BVA judge has to do this be consider as such

.extra-scheduler

Edited by RUREADY
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"Only the Director of the Compensation and Pension (C&P) Service (211B) may approve extra-schedular evaluations in compensation cases submitted under 38 CFR 3.321(b)(1).

Submit compensation claims to C&P Service for extra-schedular consideration under 38 CFR 3.321(b)(1) if

· the schedular evaluations are considered to be inadequate for an individual disability, or

· a total rating cannot be assigned solely because

- the minimum schedular requirements of 38 CFR 4.16 of the rating schedule are not met, and

- a total rating is considered warranted.

Note: Prepare a memorandum to accompany the claims folder providing a clear and concise statement of the facts including medical and lay evidence of symptoms and a discussion of the

· fact with relevant laws

· issue or issues to be resolved, and

· recommended evaluation."

Under Section B , 5:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCAQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch06%2Fch06_secb.doc&ei=SBCcVPjPM4KXyASh24LIAw&usg=AFQjCNHL5Ny6bA44KDqnaAcBn1TguErCiA&bvm=bv.82001339,d.aWw

But in this link here PR is correct:

VA must apply 38 CFR 4.16 b when it is appropriate,at the RO level.

The regulation is here:

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  • HadIt.com Elder

I'm not sure where I saw it, it may have been a FAST letter but the rule is that the "claimant" must request the extra-schedular consideration request. The RO won't do it.

pr

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RU: Merry Christmas. Extra-schedular IU? I've done a little research on this for a Vet friend with a 50% SC PTSD rating that is currently locked into a BVA appeal that I don't think he will win. With that said, my limited knowledge of E-S IU is as follows: Any time a Vet's SC conditions make it impossible to obtain or continue "Substantially Gainful Employment" the Vet can request an E-S IU rating. Keep in mind this only pertains to Vets that don't meet SC % for a regular IU claim. The E-S claim can only be decided by the "MFIC," Director of Compensation & Pension. I'm fairly certain that the VA Rating Dept would review a Vet's new application for E-S IU before submitting it to the Director for his final decision. What about a recently awarded initial claim that there was no mention by the vet for a request for E-S IU award, you might ask? I think it all comes down to Evidence submitted and in the hands of the VA Rater at the time of Award or Evidence received POST Decision that would Trigger the automatic VARO Review of the Recent Award/Denial. If at the end of the review the Sr Rater or DRO determines that the Disability picture indicates the need for an E-S IU award, it would be advanced to the Director for his/her Decision. I could be all wrong on this, never read anything from anyone, that had an E-S Award.

Keep in mind, VA regulations require the VA Rating Dept to View all Vet Comp claims as a request by the Vet for any and all Comp Benefits that the Vet is entitled to. Vets don't need to ask for any specific benefit, it is automatically understood that Your asking for everything, including E-S IU if your Employment and Medical evidence supports the Award. If you think you have a E-S IU claim, file for it and be sure the VA has all the Employment and Medical Evidence in their Hot Little Hands.

Semper Fi

Gastone

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In exceptional cases an extra schedule

RU: Merry Christmas. Extra-schedular IU? I've done a little research on this for a Vet friend with a 50% SC PTSD rating that is currently locked into a BVA appeal that I don't think he will win. With that said, my limited knowledge of E-S IU is as follows: Any time a Vet's SC conditions make it impossible to obtain or continue "Substantially Gainful Employment" the Vet can request an E-S IU rating. Keep in mind this only pertains to Vets that don't meet SC % for a regular IU claim. The E-S claim can only be decided by the "MFIC," Director of Compensation & Pension. I'm fairly certain that the VA Rating Dept would review a Vet's new application for E-S IU before submitting it to the Director for his final decision. What about a recently awarded initial claim that there was no mention by the vet for a request for E-S IU award, you might ask? I think it all comes down to Evidence submitted and in the hands of the VA Rater at the time of Award or Evidence received POST Decision that would Trigger the automatic VARO Review of the Recent Award/Denial. If at the end of the review the Sr Rater or DRO determines that the Disability picture indicates the need for an E-S IU award, it would be advanced to the Director for his/her Decision. I could be all wrong on this, never read anything from anyone, that had an E-S Award.

Keep in mind, VA regulations require the VA Rating Dept to View all Vet Comp claims as a request by the Vet for any and all Comp Benefits that the Vet is entitled to. Vets don't need to ask for any specific benefit, it is automatically understood that Your asking for everything, including E-S IU if your Employment and Medical evidence supports the Award. If you think you have a E-S IU claim, file for it and be sure the VA has all the Employment and Medical Evidence in their Hot Little Hands.

Semper Fi

Gastone

RU: Merry Christmas. Extra-schedular IU? I've done a little research on this for a Vet friend with a 50% SC PTSD rating that is currently locked into a BVA appeal that I don't think he will win. With that said, my limited knowledge of E-S IU is as follows: Any time a Vet's SC conditions make it impossible to obtain or continue "Substantially Gainful Employment" the Vet can request an E-S IU rating. Keep in mind this only pertains to Vets that don't meet SC % for a regular IU claim. The E-S claim can only be decided by the "MFIC," Director of Compensation & Pension. I'm fairly certain that the VA Rating Dept would review a Vet's new application for E-S IU before submitting it to the Director for his final decision. What about a recently awarded initial claim that there was no mention by the vet for a request for E-S IU award, you might ask? I think it all comes down to Evidence submitted and in the hands of the VA Rater at the time of Award or Evidence received POST Decision that would Trigger the automatic VARO Review of the Recent Award/Denial. If at the end of the review the Sr Rater or DRO determines that the Disability picture indicates the need for an E-S IU award, it would be advanced to the Director for his/her Decision. I could be all wrong on this, never read anything from anyone, that had an E-S Award.

Keep in mind, VA regulations require the VA Rating Dept to View all Vet Comp claims as a request by the Vet for any and all Comp Benefits that the Vet is entitled to. Vets don't need to ask for any specific benefit, it is automatically understood that Your asking for everything, including E-S IU if your Employment and Medical evidence supports the Award. If you think you have a E-S IU claim, file for it and be sure the VA has all the Employment and Medical Evidence in their Hot Little Hands.

Semper Fi

Gastone

r rating may be provided. 38 C.F.R. § 3.321.

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)

(1), for determining whether a veteran is entitled to an extra-scheduler rating:

(1) the established scheduler criteria must be inadequate to describe the severity and

symptoms of the claimant's disability; (2) the case must present other indicate of an exceptional

or unusual disability picture, such as marked interference with employment or frequent periods

\of hospitalization; and (3) the award of an extra-scheduler disability rating must be in the interest

of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The RO cant ask for this without going to BVA

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RU: Seems wrong to me, that a Vet would have to have his case @ BVA in order to get consideration for a E-S IU award but that's just me. I'll have to look into it a little more. Seems more reasonable for the Disability Picture and Hospitalizations to be picked up at the RO level as N&M Evidence regarding Vets current medical situation. The employment Evidence could only come from the Vet, right. I would think that the Senior Rater or DRO completing the review would advance a E-S IU claim on behalf of the vet.

I've never made it to the BVA level regarding any of my 6 or so claims since 2008. If the Director of the Comp & Pension is specifically tasked with the authority to award E-S IU, seems strange that the BVA has to hear the appeal of whatever the original claim was. Over the past few years of reviewing VBA Decisions, all sorts of Awards, Denials and plenty of Remands. I just don't recall seeing any E-S IU Awards, Denials or Remands. Very Strange but I can't say I was really looking for E-S IU cases. My VA education continues.

Merry Christmas and IU to All!

Semper Fi

Gastone

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PR: If you recall where you saw the info regarding the Vet having to request E-S IU, please advise. The Vets I 'm in contact with have heard of IU but have for the most part, no idea what E-S IU is or anything about the rating. Any help you could provide would be appreciated, thanks.

Semper Fi

Gastone

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