Morgan: Extraschedular Consideration and Alternative Tools to Use

Morgan v. Wilkie, Case Number 17-0098, decided May 16, 2019 considers an argument for extraschedular consideration in the context of hearing loss.

Initially, the Court noted:

Because the Board is obligated only to discuss potential extraschedular referral when the

claimant expressly raises the issue or the record reasonably raises it, the threshold question in this appeal is whether the Board was obligated to address extraschedular referral at all. See Yancy, 27 Vet. App. at 493. And, since the appellant does not contend that he explicitly raised the issue of extraschedular referral before VA, he can take issue with the Board's analysis here only if the record reasonably raised the issue.

Id. at *4.

The Court turned to the Board’s decision which contained a whole section entitled extraschedular consideration.  It noted

The very first sentence of that section reads: "The Board has considered whether referral for an extraschedular rating is warranted for the relevant periods on appeal." Id. (emphasis added). Yet the Board went on to state that "[n]either the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration." Id. Thus, we are unable to say whether the Board found the issue of extraschedular referral raised, even if it ultimately concluded that referral should be denied, or whether the Board found the issue not raised at all.

Further, we are unable to say that this error is harmless because if the Board found the issue raised, that would be a favorable factual finding that we could not overturn.

Id. at *5.

The Court then considered the Board’s obligations on remand and specifically its duty to maximize the veteran’s benefits.  It stated

We hold that VA's duty to maximize benefits requires it to first exhaust all scheduler alternatives for rating a disability before the extraschedular analysis is triggered. This is a threshold question intended to ensure that VA has satisfied its duty to maximize benefits by examining all possible rating methods in search of the highest level of established compensation as a scheduler matter before resorting to the extraschedular referral process. Further, while we discussed above several schedular rating tools VA may use in satisfying its duty to maximize benefits, we emphasize again that this duty requires VA to search all avenues of schedular rating before resorting to an extraschedular analysis. The Board is not required to discuss each of these tools in every case, but it must do so when possible schedular alternatives for rating a disability are either raised by the claimant or reasonably raised by the record. See Robinson, 21 Vet.App. at 553. Focusing on the full scope of schedular rating devices will significantly reduce the need to address extraschedular referral, reserving it for those cases that are truly "exceptional."

Id. at *7.

The Court specifically mentions the concepts of secondary service connection, analogous ratings, 38 C.F.R. Section 4.7 and 4.3, TDIU, and Special Monthly Compensation.

The lessons from this case are varied.  First, as a practice pointer, if extraschedular consideration is in doubt, explicitly raise it in writing to the Board.  Second, note extraschedular consideration is going to be reserved for exceptional circumstances.  Third, just because gaining an extraschedular award is difficult, there are many other tools to use to attempt to gain a higher rating.  I would warn that while the VA typically has a duty to consider these tools, it is likely you will have more success using an experienced accredited agent/attorney or veteran service officer.

Finally, I would note the decision is interesting because the Court specifically avoided the harmless analysis despite finding the only real functional impact raised by the evidence was that people had to talk loud for him to hear.  It did this by saying that favorable fact finding by the Board would not be overturned.  This potentially is a powerful tool to use in arguing against a harmless error argument raised by the VA.  It might have also been used to soften the impact of a recent rule change by the VA that avoids use of impact of multiple disabilities in the extraschedular consideration analysis.  See generally Id. at *4.

Decision by Judge Allen and joined in by Judges Schoelen and Toth.

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