By Thom Stoddert

For those special veterans like Butch C. from Washington State, a few words about a federal regulation of the VA called 38 CFR 4.16, or the extra scheduler benefit. Butch is a Vietnam veteran who represents many veterans that get stuck between reality and hard regulations. However, Butch is both smart and articulate. First, he got some skilled service officers who worked with him. Second he did his homework well; he familiarized himself with the benefits.
Though he is service connected for diabetes at 20 percent, this doesn’t show his true impairment due to 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 and 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 or a lot of other veterans.
Therefore with the loss of earning potential, his longevity at the present career, overall education, and 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 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 percent for a single medical issue or have a total of 70 percent for several issues and one of which must be rated at least at 40 percent. The Rating Board must consider the issue of Individual Unemployability (I/U) when these percentages exist and 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 filed.
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. The VA will try to verify the information 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 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 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 to build and support your claim.
So, bringing this all together, do get all pertinent evidence of actual unemployment, do have the medical records and/or statements show 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.

For further explanations call the VA’s Regional Office at 1-800-327-1000, the Washington State Department of Veteran Affairs at 360-725-2200 or 1-800-562-0132, or VeteranFraud@gmail.com.