West & Dunn attorney, Jonathan C. Heiden, addresses a recent Court of Appeals for Veterans Claims decision regarding extraschedular consideration.In Long v. Wilkie, the Court held that “exceptionality remains the touchstone” when deciding whether a veteran’s disability requires extraschedular consideration. This means that the disability must be “so exceptional that the rating schedule is not capable of assessing it in the first instance.” In addition, the Court required that a veteran can receive an extraschedular rating “only after conventional rating tools prove inadequate to evaluate a veteran’s symptomatology in the first place due to its exceptional nature.” The Court provided a few examples of what would meet this standard, such as significant interference with employment or frequent hospitalization.
The Court’s reasoning creates a high bar for veterans to show that their disability requires extraschedular consideration. In the past, veterans were at times successful in receiving extraschedular consideration by showing that they had symptoms not listed in VA’s rating schedule. Now, veterans will be required to show that their disability meets the Court’s understanding of “exceptional,” and that they are already receiving the maximum rating for their disability.
Finally, the Veterans Court’s decision in Long v. Wilkie is currently being appealed to the next higher court -- the Court of Appeals for the Federal Circuit. This means that the rules discussed above may change if the Federal Circuit does not agree with the Veterans Court.
If you have a condition that needs an extraschedular rating, please feel free to reach out to the attorneys at West & Dunn. Our legal professionals have years of experience and success obtaining benefits and compensation for veterans. If you or a family member want help seeking disability benefits from VA, please feel free to contact our Wisconsin veterans disability claims attorneys at (608) 490-9449 or online.