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Extraschedular Rating

The Court of Appeals for Veterans Claims is issuing between 3 and 10 new decisions….EVERY WEEKDAY.

Some are single judge decisions…..some are precedential decisions.

Regardless of the nature of the decision, every one of them holds a key to improving your VA Disability claim.

Because the Veterans Court is not a “finder-of-fact”…they can generally only adjudicate errors in law, or in some cases errors in the application of law to fact….these decisions are very unique in the law.

When the Veterans loses, Veterans Court decisions give us insight into what a Veteran could have done differently to achieve a different outcome.  When a Veteran “wins” or secures a “Remand” from the CAVC, we get valuable insight into what the Veteran did at the VA Regional Office or Board of Veterans Appeals that helped his case at the CAVC.

Of course, the Court rarely comes out and says something THAT obvious.

I’ve not seen a Court decision that says “If other Veterans did such-and-such, they will have a different outcome”.

Nor have I seen a Court decision that says “Here’s what other Veterans should do at the VARO or the BVA to be sure they will win at the Court.”

No….they just don’t write like that.

That’s what the Veterans Law Blog is here to do.

I take single judge and precedential case decisions issued by the CAVC and break them down to tell you practical tips that you can use – TODAY – to make your VA Regional Office Claim or BVA Appeal better, stronger, and more likely to produce the outcome you desire.

What follows are 3 Single-Judge Decisions issued by the CAVC in September 2016.  These are not the ONLY 3…I have about 2 dozen others I want to write and tell you about in the coming weeks.

These 3 decisions, however, struck me as having the potential to help more and more Veterans that use the Veterans Law Blog to cut through the fog of the VA Claims and Appeals Process.

 

1. CAVC Case #1 – Corroborating a Military Sexual Trauma incident

Sanchez v. McDonald, #15-0357 (Single Judge Decision, non-precedential)
Judge: Mary J. Schoelen (click her name for her CAVC Website Bio)
Date of Decision: September 13, 2016 (Single Judge)

A private medical expert issued an opinion corroborating the occurrence of a Military Sexual Trauma ‘based upon a history provided by the veteran’, was rejected by the BVA for that very reason.

The Court found that it was improper for the Board to reject a private examiner’s opinion because it was not based on corroborative evidence of the military sexual trauma beyond the patient’s recitation of the incident.

The Court pointed to 38 C.F.R. § 3.304(f)(5); see also 67 Fed. Reg. 10,330 (Mar. 7, 2002), which states only that records from physicians may be used to corroborate the stressor.

PRACTICAL TIP:
A private examiner’s opinion that you experienced an in-service military sexual trauma stressor can corroborate the incident.

So, if you are having difficulty proving any of the other “markers” that the VA requires, be sure to ask your treating doctor to render an opinion that there was an MST incident based on your treatment history.

2. CAVC Case #2 – Properly Rating a Mental Health Condition.

Bishop v. McDonald, CAVC #15-2299
Judge: William S. Greenberg (click his name for her CAVC Website Bio)
Date of Decision:  September 29, 2016 (Single Judge)

The Veteran was granted 70% for his PTSD by the VA Regional Office, and appealed seeking a 100% rating.

The Board denied that 100% rating, stating that it “acknowledge[d] that the Veteran was noted to have hallucinations and that the Veteran was noted as homicidal when experiencing flashbacks. However, the Veteran’s hallucinations were not found to be persistent and the Veteran otherwise denied homicidal ideations and was not found to be a persistent threat to others.”

The Court was strong in its rebuke of the Board, writing:

“Not only is “persistent homicidal ideation” not a symptom associated with a 100% disability rating under 38 CFR § 4.130, the Board appears to have considered this symptom in a vacuum. There is no dispute that the appellant has (1) flashbacks; (2) develops homicidal ideation when these flashbacks occur; and (3) no ability to control when a flashback may occur. The Board’s reasoning appears to reflect that unless the appellant constantly sought to kill people, he would not be entitled to a 100% rating.”

The Court, in vacating the decision and remanding it to the BVA, expressed its concern that the Board did not provide adequate reasons and bases for its denial of a 100% rating.

PRACTICAL TIP:
It is notable that, for decades, the BVA continues to strictly apply what are purposefully loose and vague rating criteria to justify lowered mental health ratings.

So, when appealing a low-balled rating of a mental health condition to the BVA, it is CRUCIAL to compare the medical and lay evidence of the symptomatology and limitations of the mental health condition with the actual rating criteria in the Mental Health Diagnostic Codes and Rating Criteria in the Impairment Rating Table.

3. CAVC Case #3 – Extra Schedular Consideration – These Benefits Could be “off-the-charts” 

Ferrell v. McDonald, CAVC #15-1670
Judge: Mary J. Schoelen (click her name for her CAVC Website Bio)
Date of Decision: September 7, 2016 (Single Judge)

This is a fascinating case, and a harbinger for a big area of VA law that attorneys have started exploring.

That area is “extra-schedular” ratings.   Literally, this area means that your ratings could be “off-the-charts”….meaning, unrestrained by the caps imposed by the VA Impairment Rating Charts.

Here’s what that means.

When a Veteran’s medical symptomatology presents an exceptional or unusual disability picture that is not considered by the schedular rating criteria, including such related factors as a marked interference with employment or frequent hospitalization, the Veteran may be entitled to an extra-schedular rating . 38 C.F.R. § 3.321(b) (2016).

The case that got a lot of people thinking about this area  of Veterans law can trace its recent popularity to a case known as the “Thun” case. Thun v. Peake, 22 Vet App 111 (2008), aff’d sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed Cir. 2009)

In the Thun case, the Court made it clear that in cases where the facts raise an issue of extra-schedular consideration, the Board is required to first determine whether the evidence presents “such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Thun, 22 Vet.App. at 115.

To accomplish this, the Board must compare “the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id.

In normal human terms, that means this: if your symptomatology is unique (and what Veteran’s isn’t) then you might not be limited to the rating assigned by the Impairment Rating Table.

Now that you have the background, on to the case.

The Veteran in this case was rated at 60% for “radiculopathy with partial right foot drop”. He did not challenge that the schedular rating was wrong, but that he had a unique disability picture that entitled him to an extra-schedular rating.

The Board glossed over this argument, using language that I am seeing used in a lot of BVA decisions…if you see language like this in your BVA Decision, it’s time to contact an attorney familiar with CAVC appeals:

“…the symptomatology and impairment caused by the Veteran’s service-connected radiculopathy with partial right foot drop are specifically contemplated by the rating criteria, as shown above. There are no other ratable symptoms stemming from the disability that are not currently considered in the rating criteria. Likewise, all of the Veteran’s symptoms and manifestations have been considered based on all available rating criteria for the disability. In this case, comparing the Veteran’s disability level and symptomatology to the rating schedule, the Board finds that the degree of disability throughout the rating period under consideration is contemplated by the rating schedule; therefore, the assigned rating is adequate. As such, referral for consideration for an extraschedular evaluation is not warranted.”

The Court wrote that the Board’s “terse conclusion” was “inadequate”. Unfortunately, this is a single-judge decision, so while it is COMPLETELY BINDING on the VBA and the BVA, it can’t be cited as legal precedent.

PRACTICAL TIP:
If your medical condition has symptoms and limitations that are not fully recognized by the rating criteria in the schedule of ratings for that condition, ask for a referral for an extra-schedular rating.

Little is yet known about how to best prove up an extra-schedular rating claim, as the concept is not well developed in the law.

As I see decisions where an extra-schedular rating is successfully proved, I will certainly share those tactics and tips with you.

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