What is the Deep Issue in the Case?

Extra-schedular consideration should be considered "where the schedular evaluations are found to be inadequate." 38 C.F.R. § 3.321(b)(1) (emphasis added).

The herring loss rating criteria are largely based on “speech discrimination” and ability to perceive various decibel ranges of sound. Based on this evaluation, the BVA rated the veteran at 0%. The record shows the veteran’s hearing loss included very serious symptoms that had an impact on his work and family life: balance problems and dizziness, impact on his marriage and anger at having to always ask others to repeat themselves were but a few.

Did the Board err when it refused consideration of an extra-schedular rating on the grounds that there were higher schedular ratings for hearing loss available to the veteran for his condition.

What did the CAVC Decide?

The Court framed the issue in terms of what role higher schedular ratings should play in an extra-schedular analysis.

The court’s held, in a precedential decision, that the availability of higher schedular ratings plays no role in an extra-schedular analysis and that it is inappropriate for the Board to deny extra-schedular referral on this basis.

Takeaway Points for VSOs and Veterans Disability Lawyers:

There is a LOT in this decision, and in the coming days, I will publish a thorough Case Review since this is a precedential decision. We will walk through the key facts, issues briefed by the parties, and take a listen to the oral arguments, before walking through the finer points of this precedential decision of the Court of Appeals for Veterans Claims (CAVC).

1) Extra Schedular ratings under 38 C.F.R. §3.321(b) are widely misunderstood.

This explanation is about as clear as one can get in describing how they work - the author of this decision is a former law professor, so the precision of thought in this analysis should be both welcome and unsurprising:

“Consider the following example: assume that a veteran has a disability that awards compensation at a 30% rating for veterans with symptoms "a" and "b." Assume also that this disability is awarded a 50% rating for veterans with symptoms "a," "b," "x," and "z." Now presume a veteran is before the Board who is rated at 30% and has sufficient medical evidence exhibiting symptoms "a," "b," and "x" but not "z." Under the Board's logic, no matter how significantly that veteran's earning ability were impaired, the Board would be permitted to grant the veteran only a 30% rating and deny referral for extraschedular consideration because, as it found here, the rating criteria "provided for higher ratings for more severe symptoms." Such a finding, however, would leave the veteran entirely uncompensated for symptom "x" with no recourse to extraschedular consideration because symptom "x" is contemplated by a higher schedular rating. This example is precisely the situation § 3.321(b)(1) was created to address. The fact that the Board's logic (supported at least in the Secretary's original brief) causes the regulation to be ineffective to accomplish its principal goal is powerful evidence of why that logic is wrong.”

In short, if your client has symptoms of a service connected disability that are NOT mentioned in the rating schedule, and those symptoms present “an exceptional or unusual disability picture”, then you should be pushing for an extra-schedular rating.

2) Until the VA updates its rating tables, extra schedular ratings are the only way to adequately compensate your clients.

The Court’s decision describes the extra schedular rating as just another way for a veteran to be adequately compensated for their medical condition.

In the opinion of this writer they are much more: they are the ONLY way to ensure your client is adequately compensated for a service connected disability

First, most VA rating tables are at least decades, if not a quarter-century, old.

Science and medicine have evolved during that time: much more is known today about how disabilities present and limit those who have them than when these tables were first written.

Second, our workplaces have materially changed in the last 50-70 years since the VA has updated the majority of the ratings tables. What impacts a person's ability to work is much different today than it was 50, or even 15, years ago.

As a result of these 2 principal phenomena, and more, there is an almost total disconnect between the intended purpose of the VA Ratings Tables and the results they achieve.

In layman’s terms, even properly applied, every VA Diagnostic Code in the VA Schedule of Ratings is likely to under-rate your client for the limitations resulting from their service connected disability.

Understanding how to prove and win claims for extra-schedular ratings under 38 C.F.R. §3.321(b) in your client’s claims is going to be a critical and essential part of your VA disability law practice for at least the next decade.

A word to the VA: you want to avoid the work involved in extra-schedular ratings?

Get out ahead of this one and update the rating tables.

All the appeals reform in the world will make no difference if claims are delayed for half-a-decade or more while the VA tries to individually rate every individual veteran.

Case Details

Link to the CAVC Single Judge Decision on the CAVC Website

Link to the BVA Decision on CAVC Website

CAVC Judge: Panel Decision (Precedential)

Judge Michael P. Allen - Opinion Author (link to bio on CAVC page)

Judge Mary J. Schoelen (link to bio on CAVC page)

Judge William S. Greenberg (link to bio on CAVC page)

OGC Attorney: Ashley D. Varga

Veteran Representation at CAVC: Linden K. Nash (CCK)

Board of Veterans Appeals Veterans Law Judge: Demetrios G. Orfanoudis

Regional Office: Cleveland OH VARO

Vets’ Rep at BVA:Disabled American Veterans (DAV)

Date of Decision: December 22, 2017