Extraschedular rating question

[Remisdad]

I received an extraschedular rating on my left hand a few months back after it was remanded to the director of c&p. I went from 20%-40% now my case is back at BVA waiting on a judge. My questions are how rare is it to get an extraschedular rating and should it help at the BVA? 

[broncovet]

I have not seen statistics on this, but VA is not forthcoming with statistics  "other than" the ones they want us to see.  

I personally got an extra schedular rating.  

The "gatekeeper" weeding out extraschedular ratings, seems to be the VARO.  "ONE" poster, on another site, who alleged he was a 20 year rating specialist, told me that I had no chance for an extra schedular rating.  But attorney's had a different view.  

So, I went with the attorney's.  I had to FORCE the VARO to consider an extraschedular rating, by an appeal to the BVA.  The board agreed, and sent it back for extra schedular consideration.  I eventually won.  Mine was on TDIU.  They all said, 
"Aw heck no, you cant get TDIu with a 30 percent rating."  They all cited 38 CFR 4.16 a:

Quote

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.

Sounds good right?  Wrong.  Keep reading.  38 CFR 4.16 b goes on to say throw the above out the window (at least some times):

Quote

(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.

Did you miss that word "ALL" cases?  But, you are gonna have to fight VA, even tho the regs are on your side.  

Edited December 7, 2020 by broncovet

[Remisdad]

I plan on filing for tdiu but my appeal is at the BVA and I didn't want to delay it anymore than it is. 1 of my c&p examiners said I was a liability and any employer of mine could be held liable if an accident was caused by me. 

In his December 2016 Notice of Disagreement (NOD) and in his September 2019 VA Form 9, the Veteran asserts that a distal fragment or bone spur that protrudes into the flesh of his hand is an additional symptom that affects his overall disability picture regarding his left hand finger disabilities that causes significant pain, limitation of motion, and an inability to fully close or grasp objects with his left hand.  Additionally, during the October 2016 VA examination, the Veteran reported his left hand finger disabilities interfered with his ability to do his job as a heavy machinery operator due to his inability to grip things in his left hand, including the need to tightly grab the steering wheel when driving a dump truck with a manual transmission over rocky roads, and that he cannot adequately perform his duties.  To this end, the October 2016 VA examiner indicated his ability to work is significantly impacted due to his inability “to close his left hand fully because when he does the portion of the third metacarpal presses into his hand causing significant pain.”  Additionally, the examiner highlighted that as his left hand condition has worsened, he has become more of a liability on the job and that in the event of an accident, his employer could be found liable for allowing him to operate equipment with such limitations.  Moreover, the December 2018 VA examiner also noted the Veteran’s ability to work is impacted due to his inability to grip with his left hand if he needed to lift something that required both hands.

I also found a case very similar to mine where the person didn't get an extraschedular rating was denied but they got 70% for loss of use of hand and SMC. I was hoping that the BVA might bump my rating but all that I have on my appeal is limitation of motion. But I'll keep trying to get more out of them. Since they lied to me when I was in the army and told me my hand was healed and in good shape. I dealt with the pain for 20 years before I discovered their lie. Well I'm getting  a little long winded on this so thanks for the response I appreciate it. 

Edited December 7, 2020 by Remisdad