Extra schedular ratings under 38 C.F.R. § 3.321(b)
When the VA grants a disability rating from zero to 100% for a veteran’s service connected disability it bases its determinations on a schedule of ratings written by Congress. The schedule of ratings lists most conceivable impairments and describes what the evidence must show to receive a specified rating. The schedule of ratings is fine if the veteran’s limitations match the requirements for a given rating but what happens when the veteran experiences symptoms and limitations and the schedule of ratings does not address? For example, many physical impairments such a back, knee, shoulder, and neck impairments receive ratings based on the veteran’s reduced range of motion. If a veteran has a full range of motion the schedule of ratings requires a zero percent disability rating and the veteran is service connected but receives no benefits.
However, as many veterans with physical impairments can tell you, reduced range of motion is only part of the story. Many of our clients with these type of impairments also experience chronic pain, muscle weakness, sitting, standing, and walking limitations, as well as frequent medications or treatment.
In these situations range of motion testing does not reflect the veteran’s true disability picture. Fortunately, VA regulations require extra schedular ratings to compensate veterans for these types of limitations. Unfortunately, more times than not the Regional Offices fail to consider extra schedular ratings and the veteran is left undercompensated or even worse empty-handed.
How can I get an extra schedular rating?
To receive an extra schedular rating the veteran must first show that the veteran’s conditions result in a disability picture that is not covered by the schedule of ratings. This is generally accomplished by showing that the veteran experiences symptoms and limitations that are not listed in the specific Diagnostic Code in the schedule of ratings being used to rate the veteran’s impairments. Using our example from earlier, a veteran with a service connected low back impairment received a zero percent rating because he has a full range of motion. However, the veteran also has significant lifting, sitting, standing, and walking limitations due to pain which go beyond range of motion and are not considered by the Diagnostic Codes for low back impairments. If the rating schedule is found inadequate, the VA must determine whether the claimant’s exceptional disability picture exhibits other related factors referred to as “governing norms”. The term “governing norm” really just means marked interference with employment or frequent periods of hospitalization. If these are shown then the veteran’ s case will be referred for an extra schedular rating.
Here is an example: A veteran with a service connected knee impairment was granted a 10% disability rating under Diagnostic Code 5260 for knee impairments because her range of motion was only mildly reduced. On appeal, the Board of Veterans’ Appeals held that because the veteran’s medical records showed numerous flare-ups, swellings, knee collapse, and continued complaints of pain that affected her work and daily functioning at school, then an extra schedular was required.
Here is another example: A veteran with a service connected back impairment was denied benefits under Diagnostic Code 5237 for spinal disabilities because the veteran did not have a reduced range of motion. However, the Board of Veterans’ Appeals noted that the record contained multiple statements by the veteran supported by medical records that his service-connected lumbosacral strain causes pain when he sits for more than 30 to 45 minutes and sometimes requires him to lie down. The Board concluded that this was sufficient evidence to indicate a marked interference with employment and ordered the Regional Office to grant an extra schedular rating.
If you feel that your VA disability rating is inadequate and doesn’t reflect the true severity of your impairments, contact us for a free consultation. We will provide a straightforward analysis and explanation of your case and tell you how representation can help.