adjudication of an extra-schedular rating

[blahsaysme2u]

i have looked all over this forum for info on this and everything comes up about TDIU . i am not unemployed, though one could argue i probably should be. thats for another discussion. i dont want to sit on my but and have to keep busy...

anywho- i am not one to put all my eggs in one basket. so even though i really appreciate all of the help i get from here, i ask around at other places and try to find other angles to fight the VA. 

i am sure you are tired of hearing about CAPD by now as i have posted a lot the past few days on the topic, but the VA has a research department that studies CAPD and are the ones that linked JP8 as a possible cause of the disorder. VA RR&D National Center for Rehabilitative Auditory Research is located in Oregon. so i reached out to them(multiple emails to multiple people listed there in their directory  ) i said the below:

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Good afternoon,

I am a veteran seeking a va claim for my recent CAPD diagnosis by my independent audiologist. I am hoping that you might can help me locate the correct DBQ for this condition for my claim as well as the VBA's Schedule of Ratings Code for CAPD(or APD)

i didnt expect to get such fast response, but i guess when you blow up everyones email in the same department, squeaky wheel gets the grease  i just got this response:

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Thanks for contacting me.  Presently, there is no policy or procedure for Compensation & Pension (C&P) exams for CAPD. CAPD is not listed under the Veterans Affairs Schedule for Rating Disabilities (VASRD), and there is no practical application to rate percent disability for CAPD under the U.S. Code of Federal Regulations (38 U.S.C. 1114(k)). However, if there are unique disability symptoms or expert evidence of interference to employment, the case may be referred to the VA Compensation and Pension Service director for adjudication of an extra-schedular rating.  Here is a link with a little more information about extra-schedular ratings in case it’s helpful: https://www.law.cornell.edu/cfr/text/38/3.321

 

BUMMER RIGHT?!?!?!?!

so what do i do next guys. what is this "adjudication of an extra-schedular rating"?  i have seen plenty of appeals cases that have CAPD listed(ie https://www.va.gov/vetapp03/Files/0300474.txt , and this was all the way back in 2003) so i know that people are submitting claims for this but i dont understand this extra-schedular? is she saying TDIU? if so thats not me and need another option. 

let me know what you guys think or point me in the direction of a thread that has discussed this topic before.

thanks guys

Edited December 18, 2019 by blahsaysme2u

[broncovet]

You ask excellent questions, and this is a great one.  Since I went through it, I can tell you how I did it.  On another website, a person claiming to be an ex rater basically told me that VA doesnt do 38 CFR 4.16 b (extra schedular tdiu ratings). 

These are referred to VACO (VA Central office).  I asked him what I had to do to get a referral for VACO to do my 4.16b rating, and he did not have an answer BUT I DO.!!!  He essentially said that (extra schedular) ratings were "rare" and that if you did not meet the percenatage requirements in 4.16 a, you would not get tdiu.  However, in several law firm websites they pointed out THAT was not true, because of 4.16 b.  4.16 b uses the phrase "shall be rated totally disabled".    I have read later that the term "shall"  is a legal term indicating  its mandantory, as opposed to "may" where the decision maker has discretion.  The decision maker does not have discretion here, if I meet the criteria (before the phrase "shall" )  they must grant me the rating because its mandantory.  

Basically I had to "force" the issue.  How did I do that?   Well, I appealed the denial of my tdiu, and argued in my appeal that I was not considered for a 4.16 b (extra schedular tdiu) rating.  Now, you need to bring that issue up on appeal!!!   Otherwise there are not good ways to force the issue.  If you dont bring the issue up on appeal, then the Board does not consider it!!!

     I suggest you read 4.16 b, below, enough times that you virtually have it memorized like I do.

    Well, the board agreed with me, since my doctor opined I was unemployable.  So, they HAD to send my claim to VACO for extra schedular consideration, and, suprise, suprise, they denied it.  But, NOW I have a written decision to appeal!!!  You see, they would rather "gloss over it" and hope Vets dont catch it, and most of the time they would be right.  

But they did not know WHO they were dealing with!!!  They didnt know I could read, and, that I had access to some VEry smart people.  

    So, I made sure I had it covered in my appeal.  For tdiu, you need a doctors statement that "your service connected conditions at least as likely as not render you unable to maintain SGE (substantial gainful employment).   I looked in my file, and my favorite doctor had provided exactly such a statement.  So, I won at the BVA the second time.  

     There are 3 keys to winning this, and all claims:

1.  You either need to be a good reader, and, good with search engines, or know someone who is.  It can be a VSO, your wife, or an attorney friend.  

2.  You need either a Veteran friendly doctor, OR, money to buy your own IMO/IME, to provide a nexus.  

3.  You need persistence and determination to keep going until you win.  Oh, and yes, you also have to have a "winnable" claim.  Some are not winnable.  If you have a dishonorable discharge after 3 days in the service, and you are arguing they caused sleep apnea with no in service event you are going to lose no matter how persistent you are because you dont have a winnable claim.    However, my experience has been "most" claims are winnable.  But not all claims are won.  Why?  Mostly they give up.  Sometimes you have to talk to a half dozen attorneys (like I have), before you find one who "gets" your claim.  

     In 2003, my VSO (VFW) dropped me from repreentation.  They said my claim was not winnable.  I said "phoey".  I served 4 years, had an honorable discharge and good conduct medal.  I served just a few yards from an airport where jet planes roared by my barracks every 15 minutes, and had an audiologist who opined that my hearing loss was "at least as likely as not" due to excessive noise exposure in service.  Oh, yes, I had more favorable evidence too.  I won, altho it took me a long time through persistence and knowledge and some good people helping me, including those on hadit.  

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 4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) 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 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.

 

Edited December 18, 2019 by broncovet
add more:

[blahsaysme2u]

Thanks man. i try!

as far as this question goes, maybe i wasnt clear...i am not trying to get TDIU. I like my job and they are very accommodating to my needs. now if i lost this job i dont know that i would find anohter one that i could work..why i said one could argue i probably should be TDIU. 

but until that day i am just trying to hit my 100 goal. and this CAPD is a big part in that. 

but just to clarify my question- the only way to get SC for something that isnt  in Veterans Affairs Schedule for Rating Disabilities (VASRD)? i thought i had read about analogous claims? cant they just SC it under something that is very similar(maybe under TBI or even hearing loss?)

[broncovet]

The VASRD is designed to compensate "the average Veteran" to the degree of work he or she is unable to complete.  That is, the loss of income from working.  100 percent (except for SMC) generally means your disabiitie(s) are severe enough that you can not work.  

So, if you are working, you wont be eligible, generally, for TDIU except under a few unusal circumstances such as a protected work enviornment.  

I am unfamiliar with CAPD, and a search was not meaningful.  

Generally, if you are working full time its difficult to obtain a 100 percent rating.  There are exceptions.  One example is Tammy Duckworth who lost her legs to an IED.  She is apparently rated 100 percent and works.  She has "overcame" her disabilities (no legs), and managed to use her wheel chair and earn a living.  However, the VASRD is for "the average person", and most people who have no legs cant very well get a job.  

My doctor at VAMC is legally blind.  But he still works as a doctor.  Its incredible.  If he was sc for vision loss, he could get 100 percent and work also.  

But, when you read the criteria for 100 percent for mental health disorders it states, "Total occupational and social Impairment".  How can one claim they are totally occupationally impaired if they are working full time?  This is why its exceptionally difficult for mental health disorder related VEts, such as PTSD Vets, to get 100 percent if they are still working.  

Again, I dont know what CAPD means.  In at least your case, it seems to mean what ever your symptoms, you are still able to work full time.  

Yes, there are analagous ratings, and, yes they "can" SC it under another DC.  But, if you are working full time, the evidence does not support a 100 percent mental health rating if you are able to work full time.  Again, read the criteria, where I posted it elsewhere.  

[Dustoff1970]

Many years ago I had similar experience with an extra scheduler.  Veterans like me/us are not suppose to file a claim directly to VARO for extra scheduler but this rarely granted claim is submitted by the VA rater to central office if he or she thinks the vet is entitled to IU based upon a rating or combined ratings that is less than the required 60% single issue rating or a 70% combined rating according that is normally required for eligibility to obtain TDIU.

Broconvet has given you the 38 CFR regulations and good advice above.  Like him I also ask for extra scheduler IU for my 1985 to 89 50% PTSD rating and was denied but still I ask for it in a later CUE claim filed in 2000 and I then appealed on my own all the way up to the U.S. CAVC vet court where they agreed and said the 85 to 87 VARO decision should have adjudicated me for an inferred TDIU Claim and the court remanded the claim back to the BVA to adjudicate me for that TDIU.

I did receive TDIU P&T in August of 2000 and long before the court decision in my favor in 2005.

[broncovet]

Dustoff

    Exactly.  This is a classic example of the VA wanting to keep Veterans in the dark. They even have retired raters, on other sites, telling Vets "not to bother filing" for tdiu unless you meet the 50/70 percent "requirements" (that are not required) in 4.16 a.  

    If they can keep you from filing, then the lowball rating they gave you can be kept a lowball rating...even tho you cant work, the VA wants you to try to survive on 70 percent, 50 percent or even less.  Its inconsistent with the regulations, reminding you of 4.16 B which states:

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(b) 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.

Instead of this regulation, they cite 4.16 a, which looks like you have to meet those minimum standards for tdiu.  Its just another lie VA tells us...and they get most Veterans to believe it, too.  

    I can not beleive that  retired rater "tried to make everyone believe" that you had to be at least 50 percent to get tdiu.  Its simply not true, and inconsistent with the regulations.  This guy said he trained raters, so now we know how VA "trains" the raters into believing much more strict criteria, than the regulations so state.  

    I wear the "badge of honor" for being banned from that website, because I DARE argue with a retired rater that Veterans DO NOT necessarily need to be at least 50 percent disabled to get tdiu.  4.16 a is designed to confuse Veterans, and NOT read 4.16b.  
 

Edited December 18, 2019 by broncovet

[Vync]

@broncovet I recently had to dig up the full definition of "total disability ratings" in my challenge to the S-DVI insurance waiver. I say 4.16 and believe that's where they were justifying denial of the waiver to veterans who were still employed. I ended up finding the complete definition of total disability ratings here. I had already known about 100% schedular and IU/TDIU, but didn't realize there were other ways to be classified as totally disabled.

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§ 3.340 Total and permanent total ratings and unemployability.

(a) Total disability ratings -

(1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

(2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met.

(3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided:

(i) That the disability must in the past have been of sufficient severity to warrant a total disability rating;

(ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and

(iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation.

(b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.

(c) Insurance ratings. A rating of permanent and total disability for insurance purposes will have no effect on ratings for compensation or pension.

[26 FR 1585, Feb. 24, 1961, as amended at 46 FR 47541, Sept. 29, 1981]