TDIU Extraschedular Claim Under 38 CFR 4.16(b)
What is a TDIU Extraschedular Claim Under 38 CFR 4.16(b)? While the Veterans Administration can be rather good at assessing disability ratings, there are a number of situations that do not fit neatly into numerical categories. For example, a Veteran might sustain a leg injury which causes a gait disorder and a back injury.
Total Disability due to Individual Unemployability (TDIU) claims are another example. These claims are inherently subjective. Essentially, these Veterans have partial disabilities which are so severe that they are tantamount to total disabilities, even though the rating schedules used may not produce a 100% disability rating.
TDIU is another way a veteran can obtain disability payments as though his or her rating is set at 100%. However, in most instances, the veteran must meet certain rating criteria in order to be eligible for TDIU (a 60% disability or a combination of conditions which total a 70% rating with one of the disabilities assigned at least a 40% rating, along with unemployability).
What If Veterans Do Not Meet Ratings Criteria
Even if a Veteran does not meet the ratings criteria for a schedular TDIU claim, a VA disability attorney might be able to obtain TDIU benefits via the extra-schedular approach.
38 CFR 4.16(b) states, in part, “…ratings 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.”
In other words, if a veteran’s service-connected disabilities are so severe as to prevent him or her from maintaining gainful employment, but they do not have the required ratings for TDIU eligibility, there is still a possible path to a grant of TDIU. This is what is known as an extraschedular TDIU claim. Some factors that often play a role in establishing an extraschedular TDIU claim are discussed below.
Most Veterans have either physical or psychological service-related disabilities. The rating systems in both these areas do not account for unusual symptoms.
To rate a physical disability, many Compensation and Pension (C&P) doctors rely on range-of-motion tests. That is especially true in knee, shoulder, ankle, and other joint injury cases. The less motion in the joint, the higher the disability rating.
This approach does not account for individual disability factors, such as unusual pain. For example, a Veteran’s ankle might have stiffness that causes inflammation which makes it impossible to stand for more than a few minutes at a time.
Psychological disabilities, like PTSD, have the same problem. Frequently, C&P doctors go through a list of symptoms, checking yes/no boxes as the examination progresses. This objective approach can fail to account for individual symptoms.
PTSD nightmares are a good example. Some people have disturbing nightmares. Other people have such graphic nightmares that they are afraid to go to sleep in the first place. The lack of sleep can cause compounding difficulties that may not be properly accounted for in the assigned rating.
Lay testimony often helps establish unusual symptoms. Friends and family members, even though not doctors, can testify as to how a disability affects a particular Veteran. Typically, lay testimony is quite compelling in its simplicity.
Frequent Hospitalization or Employment Interference
There is no hard-and-fast rule as to what constitutes “frequent” trips to the hospital or a substantial “interference” with employment.
Our Veteran with the ankle injury might be in and out of the hospital quite a bit, mostly due to falls. Most employers are quite patient with disabled Veterans, but their patience is not unlimited. At some point, the hospitalizations become too frequent.
As for the second example, if our PTSD Veteran has trouble sleeping, that problem might affect her energy level and concentration ability the next day. Most employers demand the best from their employees. If the employee is unable to deliver that level of commitment, long-term employment might be a problem.
Once again, lay testimony is important. Medical and employment records are equally as useful, in most cases.
Supporting Expert Testimony
Lay testimony regarding unusual symptoms or effects is insufficient. Veterans must supplement this evidence with expert testimony. That is especially true if the Veteran has a limited work history.
Many attorneys partner with vocational experts. These individuals consider not only the medical and psychological effects of a disability, but also its impact on vocational prospects.
Contact Dedicated Attorneys
Regardless of your percentage rating, total disability benefits might be available. For a free consultation with an experienced Veterans disability lawyer in San Diego, contact the Law Offices of Peter S. Cameron, APC at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.