(a) Use of rating schedule. The 1945 Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation, disability and survivors pension, and in eligibility determinations. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability.
(Authority: 38 U.S.C. 1155)
(b) Extra-schedular ratings in unusual cases—(1) Disability compensation. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization.
(2) Pension. Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule but is found to be unemployable by reason of his or her disability(ies), age, occupational background and other related factors, the following are authorized to approve on an extra-schedular basis a permanent and total disability rating for pension purposes: the Veterans Service Center Manager or the Pension Management Center Manager; or where regular schedular standards are met as of the date of the rating decision, the rating board.
(3) Effective dates. The effective date of these extra-schedular evaluations granting or increasing benefits will be in accordance with § 3.400(b)(1) and (2) as to original and supplemental claims and in accordance with § 3.400(o) in claims for increased benefits.
(c) Advisory opinion. Cases in which application of the schedule is not understood or the propriety of an extra-schedular rating is questionable may be submitted to Central Office for advisory opinion.
Cross References:Effective dates; disability benefits. See § 3.400(b). Effective dates; increases. See § 3.400(o).
[26 FR 1583, Feb. 24, 1961, as amended at 29 FR 1463, Jan. 29, 1964; 37 FR 10442, May 23, 1972; 39 FR 5315, Feb. 12, 1974; 39 FR 32988, Sept. 13, 1974; 40 FR 57459, Dec. 10, 1975; 61 FR 20727, May 8, 1996; 74 FR 26959, June 5, 2009; 79 FR 2100, Jan. 13, 2014; 82 FR 57835, Dec. 8, 2017; 84 FR 170, Jan. 18, 2019]
Notes of Decisions
Robert A. Anderson v. Eric K. Shinseki, 22 Vet. App. 423 (Vet. App. 2009).
· cites it 44× “Anderson discussed the applicability of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b)(1) to Mr. Anderson's claim.”
Marvin O. Johnson v. Eric K. Shinseki, 26 Vet. App. 237 (Vet. App. 2013).
· cites it 39× “2 The appellant does contest the Board's determination that he was not entitled to extraschedular rating consideration of his service-connected rheumatic heart disease and right knee disability under 38 C.F.R. § 3.321 (b)(1) (2012). In this regard, Mr.”
Dennis M. Thun v. James B. Peake, 22 Vet. App. 111 (Vet. App. 2008).
· cites it 9× “Thun appeals, through counsel, a June 22, 2005, decision of the Board of Veterans’ Appeals (Board) that determined that his disability rating for his service-connected post-traumatic stress disorder (PTSD) did not warrant referral for extraschedular consideration under 38 C.F.R.…”
Johnson v. McDonald, 27 Vet. App. 1362 (Fed. Cir. 2014).
· cites it 11× “Because the Veterans Court’s interpretation of 38 C.F.R. § 3.321 (b)(1), which governs referral for extra-schedular consideration, contravenes the plain meaning of the regulation, we reverse and remand.”
Floyd v. Brown, 9 Vet. App. 88 (Vet. App. 1996).
· cites it 21× “The RO also denied a total disability rating based on individual unemployability (TDIU rating) on a schedular basis but recommended granting a permanent and total disability rating for non-service-connected pension purposes on an extra-sehedular basis under 38 C.F.R. § 3.321…”
Brambley v. Principi, 17 Vet. App. 20 (Vet. App. 2003).
· cites it 28× “The Board also considered the applicability of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b)(1) (2002). The Board concluded that the appellant had not demonstrated that either of his back conditions, in and of itself, was sufficiently extraordinary or unusual to…”
Dingess - Hartman v. Nicholson, 19 Vet. App. 473 (Vet. App. 2006).
· cites it 7× “§ 7104 (d)(1)" because it did not address whether his PTSD claim warranted extraschedular consideration under 38 C.F.R. § 3.321 (b)(1) (2001); and (3) the Board did not "provide any adequate discussion of the veteran's educational and occupational history in the context of a…”
Doucette v. Shulkin, 28 Vet. App. 366 (Vet. App. 2017).
· cites it 5× “) at 5-13; Reply Br. at 1-8. He specifically contends that the Board failed to explain how his hearing loss disability was properly contemplated by the rating schedule and to adequately “discuss extraschedular consideration in terms of the effects of [his] hearing loss on his…”
Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
· cites it 6× “38 C.F.R. § 3.321 (b)(1). This appeal concerns the proper allocation of authority to adjudicate a veteran’s entitlement to an extra-schedular disability rating under section 3.”
Freddie Butts v. Robert A. McDonald, 28 Vet. App. 74 (Vet. App. 2016).
· cites it 20× “BACKGROUND In cases that present an "exceptional or unusual" disability picture, 38 C.F.R. § 3.321 (b)(1) authorizes the Under Secretary for Benefits or the Director of VA's Compensation Service to approve extraschedular evaluations "commensurate with the average earning…”
Johnston v. Brown, 10 Vet. App. 80 (Vet. App. 1997).
· cites it 10× “The Board also concluded, as to each disability, that an ex-traschedular evaluation under 38 C.F.R. § 3.321 (b)(1) (1996) was not warranted because “the [appellant]’s disorder is not so unusual and exceptional as to render impractical the application of the regular rating…”
— 38 C.F.R. § 3.321(b) — 5 cases
— 38 C.F.R. § 3.321(b)(1) — 47 cases
Robert A. Anderson v. Eric K. Shinseki, 22 Vet. App. 423 (Vet. App. 2009).
“Anderson discussed the applicability of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b)(1) to Mr. Anderson's claim.”
Marvin O. Johnson v. Eric K. Shinseki, 26 Vet. App. 237 (Vet. App. 2013).
“2 The appellant does contest the Board's determination that he was not entitled to extraschedular rating consideration of his service-connected rheumatic heart disease and right knee disability under 38 C.F.R. § 3.321 (b)(1) (2012). In this regard, Mr.”
— 38 C.F.R. § 3.321(b)(2) — 1 case
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