Thom Stoddert 

Agent Orange Clearing the Confusion

For those special veterans like Butch C. from Missouri, a few words about a federal regulation of the VA called 38 CFR 4.16, or the extra scheduler benefit.   

  Butch is a Viet Nam veteran who represents many veterans that get stuck between reality and hard regulations. However, Butch is both smart and articulate.  First, he found some skilled service officers who have worked with him. Second he did his homework well; he learned the regs.

  Though he is service connected for Diabetes at 20%, this doesn’t show his true impairment linked to his military service. He has been a truck driver most of his life with an impeccable record. However, federal regulations unrelated to the VA deny him his all important Commercial Drivers License, because he takes insulin to control his disease. In other words once he has been prescribed insulin injections he could no longer drive a truck/commercial vehicle and earn a living. 

  So, now in his early 60s  he is unemployable at his usual career. He is not likely to find gainful employment in a related career field and the present economy is only making things worse for him and probably a lot of other veterans. 

  Therefore, with the 1) loss of earning potential, 2) his longevity at the present career, 3)overall education, and 4) the present economic climate, all make the likelihood of gainful re-employment with his service connected medical issue(s) unlikely. Thus the need for an extra-scheduler rating for unemployability, because Butch does not meet the normal criteria for individual unemployability ( I/U ) and he did learn about 38 CFR 4.16 which reads:

“ 38 CFR 4.16(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 and Pension 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.”

  Normally a veteran must be rated at 60% for a single medical issue OR have a total of 70% for several issues, one of which must be rated at least at 40%. The Rating Board may or may not automatically  consider the issue of Individual Unemployability (I/U) withthese percentages even when there is reasonable evidence of lack of employment. In most cases the VA informs the veterans -  that if in fact he or she is actually not working, a VA form 21-8940 , a request for unemployability should be sent to the VA. 

  State specifically that you know that you don’t meet the normal requirements under 38 CFR 4.16 for I/U, but that you are in fact not working and not employable because of service connected issues. Do request an extra-schedular rating and provide the evidence they will need. My suggestion here is to not only submit  the VA form 8940, but send in any information from your former employer(s) indicating why they let you go and when. A copy of the law certainly would be helpful. The VA will try to verify the information on documented on the 8940. 

  Act fast and don’t assume your former boss still has the information the VA needs; do provide what you may already have. Many small shops discard employee information after the completion of the first tax year and the new secretary hired since you left can’t think beyond his or her fingernails. So take responsibility here and do not rely on a former boss to rapidly address the need for verification. 

  The word “gainful” in relationship to employment was deliberately high-lighted, because it is a very important key word. A job paying even more than minimum wages supplied by sympathetic family members is not considered to be gainful employment. The veteran in this case would be unemployed if it were not for family. This is often true for charities that find work for the disabled; if it were not for the charity and a sympathetic employer, the vet would not be working.

  Another thought to consider when gathering your evidence for the VA; are there any benefits coming in from the Social Security Administration or other such agencies? This is useful information for building and supporting your claim. 

  So tying this all together, do get all pertinent evidence of actual unemployment, do have the medical records and/or statements show that that the results of your military service do prevent  gainful employment. Finally, do identify where all the medical treatment records are so that the VA can attempt to get them. By law they have to try or notify you of their failure to get them.

  As for Butch, there are many more issues he has to deal with that are not discussed here, but he and I would like to hear from you and let us know of any your experiences with an extra-schedular rating claim, what worked and what didn’t. 

For Those Special Cases of Unemployability

Thom Stoddert
Thom Stoddert
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