Select Page

va disability ratingsDo you remember the Tower of Babel from history classes?

Fascinating story that is…here are the high notes.

Man was building a tower to reach the heavens.  God, a little worried that man might actually reach the heavens, needed to put an end to their work building this massive tower.

Now, being an all powerful God, you’d think he’d do this rather quick – a bolt of lightning, maybe, or perhaps a good-old fashioned biblical “smiting”.

You’d be wrong.  The old man upstairs took a more subtle approach.

He mixed up everybody’s language, making it impossible for them to communicate.

You see, God thought it was more important for mankind to learn to communicate and learn to get along with each other, so his approach, while rather creative, was also done for a very specific, and noble, reason.

What does this have to do with VA Disability Ratings, you are probably asking.

The VA, I think, gets nervous when Veterans are just about to figure out this VA claims process.  When we get close, they change up the language to make it incomprehensibly impenetrable to the average human.

Very much like the Tower of Babel, yes?

Get close to something really big, and all of a sudden the language changes.

The difference is that I don’t think the VA has as noble a purpose as the good Lord’s at the Tower of Babel.  Instead, I think they realize that most Veterans give up when confronted by complexity  in VA Claims.

I don’t want that to happen.  If all that is separating you from getting the benefits you deserve is learning the VA’s language, I would rather teach you the language.

So, let’s dive in to the language of VA Disability Ratings.

What is a VA Impairment Rating?

I answer this question in a lot more detail in other posts, but let’s do a quick recap here.

The Impairment Rating – what I call the 3rd Pillar of your VA Claim – is how the VA translates the degree of your disability into a dollar amount for your monthly VA Compensation.

Let’s say that you have a sleep apnea diagnosis (or any disability which you have already proven is related to your military service).

You show the VA how your sleep apnea diagnosis is affecting your daily living, and they turn that into a percentage rating, which equates to a dollar amount you are paid each month.

Simple enough, so far, right?

This is where things start to turn into the Tower of Babel.  There are four (4) major ways that the VA can assign an impairment rating, and because they all have very similar names, they can get really confusing.

But each of these 4 ways of rating a claim has very different legal standards – if you use the wrong words, you may completely change what you have to prove and to what degree you have to prove it to the VA.

Using the wrong language when seeking an Impairment Rating in your VA Claim could, ironically, cost you your entire VA Claim.

So let’s look at the 4 major ways that the VA can “rate” a claim.   The purpose of today’s post is to define these different types of ratings, and get you thinking whether they apply in your claim or appeal.

Throughout this post, I will link to other posts that go into more depth on how to use and prove these different types of ratings.

#1: Schedular Rating – the PRIMARY type of VA Impairment Rating.

The Schedular Impairment Rating is the most common kind of rating.  It is also the one that most of you will instinctively “get” or understand.

In its basic premise, it is straightforward, simple, and understandable by normal humans that don’t speak “bureaucrat-ese”.

Here’s how it works.

You look up your medical condition on the VA Impairment Ratings Table in 38 CFR Table 4 – this is known as “The Schedule of Impairment Ratings”, or simply “the schedule”.  (click here to learn more about what 38 CFR is).

When you find your condition on the “schedule”, you match the symptoms YOU are experiencing with the symptoms that the VA says are important for a  rating at a particular level of severity for that condition.

If you have symptoms X, the “schedule” says you should be rated at 40%.  If you have symptoms X and Y, you are rated at 70%. And if you have symptoms X, Y, and Z, then you are rated at 100%.

Every condition has its own rate-able symptoms in the schedule, and each has its own compensation levels.  For PTSD, for example, you can get rated at these levels.  And for sleep apnea, here are the VA disability ratings levels that are available.

For most knee ratings, you can only get rated at 10, 20, 30, 40, 50 and 60 percent.

You get the idea – and if you need to properly assess what the schedular rating criteria are for your condition, you can learn more in a post like this.

Within the category of “Schedular Ratings”, there are some pretty important, and common, “sub-rules”.  Most of you have heard them – and again, I am only going to define them in this post.

Click on the links in the body of the post, or search the blog above for posts written on these rules.

Schedular Sub-rule 1: Combined ratings.

Schedular ratings for multiple conditions are “combined”, not added.  

If you have a 70% for PTSD, and a 30% for a knee condition and a 0% for sleep apnea, your ratings do not add up to a 100% total rating. Instead, we use VA Math to combine those ratings: when combined the total impairment rating is 80%.

We often joke and call this VA Math, but largely it is because that is how Congress told the VA to do it.

If you don’t like how combined ratings limit your compensation below your total actual impairment – and I have not yet met a Veteran that does – the solution is by getting Congress to simplify things through legislation.

Schedular Sub-rule 2: Analogous Ratings.  

More accurately described as a “rating by analogy”, an analogous rating is used when the Rating Schedule at 38 CFR Table 4 does not list your medical condition.

Here’s a great example.

A common condition that many Veterans were diagnosed with during the early days of the Afghanistan and Iraq wars was a condition called “Rhabdomyolosis”.

Due to the extreme physical exertion in most PT programs at the time – and the popularity of physical fitness training programs like the “Delta Force Training Workout” (no such thing, just don’t want a defamation suit by naming actual programs) – soldiers were demanding too much of their muscles before their muscles had a good fitness base.

As a result, they screwed up their muscle system so that their muscles began consuming themselves for energy – the more they worked out, the weaker and more exhausted they became (this is a SUPER-simple and not entirely medically accurate description – I only do this for purposes of illustration of my point). This condition is known as “Rhabdomyolosis”, aka “Rhabdo”.

This condition appears NOWHERE in the VA Disability Ratings schedule.  So, once you have proved to the VA that the condition is service-connected, you will have to argue for a “rating by analogy” – or an “analogous rating”.

Simply put, you argue that YOUR condition, for which there is no rating schedule, is most similar to another condition, for which there IS a rating schedule. To do this, you look for a condition that is most similar – or analogous – to your condition.

In the example above, the condition that I think is most similar (most of the time) to “Rhabdomyolosis” is Fibromyalgia.  The symptoms are very similar, their severity on the rating schedule is very similar, and so I would argue that when a Veteran’s “Rhabdo” is service-connected, it should be rated as “analogous to fibromyalgia”

Schedular  Sub-rule 3: Staged Ratings.  

When you have a condition that is diagnosed and service connected, and that DOES appear on the rating schedule, but for any number of reasons, there is no clear evidence of what exactly what VA Disability Ratings you should receive at any given point in the past, the VA will “stage” your rating.

Let me not mince words here – a staged rating is a guess.

The VA – or in some cases, the BVA – pulls this rating out of their a**.  Sorry to be so graphic and crude, but that’s what it it is.

It most commonly occurs when a claim is granted after many years of appeals.  Let’s say a Veteran finally wins a PTSD claim after running through the VA Hamster Wheel for 10+ years.   And let’s also say that when he does finally win, after 10 years of fighting the VA, he is granted a 70% rating.

Because the Veteran’s representative, or the Veteran themselves, did not regularly update the file with lay evidence proving up changes in the severity of their condition over the course of that 10 year claim/appeal, nobody can figure out if the Veteran was entitled to a 70% rating for PTSD for all of those 10 years. So the VA guesses.

If you see the words “staged rating” in a ratings decision or a BVA decision, you should automatically think “I’m probably getting low-balled”.

Many times, the evidence to argue for higher historical ratings is in your C-file, but like most of the other good  evidence, it was a needle buried in the haystack of evidence you sent in to the VA before you started using this blog to make your VA Claim better.

Schedular Sub-rule 4: Rule against Pyramiding.

This sub-rule is pretty basic in its concept, but difficult in its application.

Here’s how it works.  In a nutshell, you cannot “pyramid” your ratings – get multiple ratings for the same set of symptoms.

So, let’s say you have PTSD from an experience in combat in Afghanistan, and that your symptoms rise to the 70% level for PTSD.  Let’s also say that you are diagnosed with Major Depressive disorder secondary to Parkinson’s Disease, which is also service-connected.  Let’s say that if that Major Depression was rated, it would be 70% or lower.  You do not get two 70% ratings – if 2 or more service-connected conditions impact the same body system in the same way, then you get the rating for the condition that is more severe (i.e., the highest  rating).

This is too much detail for this post, but the key to getting a better rating when the VA applies the “Rule Against Pyramiding” is to prove and argue that your conditions do not impact the same body system, and/or if they do, then they do not affect it in the same way.

#2: “Extra-schedular” rating – the most OVERLOOKED type of VA Disability Ratings.

Remember above that we said that you calculate your “Schedular Rating” by matching the symptoms YOU are experiencing with the symptoms that the VA says are important for that condition?

And remember that we said that if your condition is not listed on the Schedule of Ratings that you should argue for an “Analogous Rating”

Well, what do you do if your condition IS listed on the Schedular Rating table, but when you rate your symptoms  based on that schedule, the rating does not adequately compensate you for the unique – and severe – way that this condition affects YOU?

That is where you argue for an extra-schedular rating (‘extra’ here, means ‘beyond’ and NOT ‘in addition to’).  An extra schedular rating, therefore is a rating BEYOND what the schedule says you should get for the general symptoms of the general condition.

Here, generally, is how it might work.

Let’s say you have a left knee condition that is service connected, and the VA rates your knee condition at 30% (and let’s also assume that the VA properly rated all 3 facets of your knee condition).  Let’s also say that the stability component of your knee condition is so bad that you are frequently falling down at work and have had multiple ACL and MCL tears as a result, requiring frequent hospital treatment.

You still have a job – your employer is nice and doesn’t fire you – but you aren’t getting paid while you are at the hospital either.

If you are a single Veteran  getting around $400 a month for a 30% rating (2016 numbers), this is probably nowhere near enough to compensate the unique severity of the symptoms. But according to the Impairment Rating Schedule for knee injuries, you are not going to get more than a 60% rating for your knee.  Also, since your employer is super nice, you still have a job, so you aren’t necessarily entitled to TDIU.

What is a Veteran to do?  This is where “extra-schedular” ratings come into play.

This is a relatively NEW area of the law – the source of the authority for extra-schedular ratings is found in 38 CFR 3.321(b).   Problem is, until the last 3 years, nobody has really defined how the Board and the VA are supposed to fairly apply this rule for Veterans.

As a result, extra-schedular ratings are a VERY hot topic at the Veteran’s Court right now. The court is kicking out for remand a good number of BVA decisions that deny extra-schedular ratings – and I think the reason is that the Court wants to start shaping HOW this type of rule is applied.

Bottom line, if you think your unique symptoms for a condition are not adequately compensated for by the Rating Schedule, look into an extra-schedular rating.

#3: The TDIU Rating – 100% when you can’t make a living.

This is a unique type of rating that occurs when a Veteran, because of his or her service-connected conditions, is unable to engage in substantially gainful activity.

In such cases, the Veteran will be rated at 100% disabled due to TDIU, even though the total schedular VA Disability Ratings are not 100%.

(Notice I did NOT say you had to be unemployed..you can be employed in some scenarios and recover TDIU benefits…the BVA very often denies TDIU saying that the Veteran has not shown that they are “unemployable”…if your BVA decision says this, it’s time to talk to an attorney that handles appeals to the Veterans Court.)

There are 2 ways to get TDIU:

38 CFR 4.16a has what I call the “60/70-40 Rule” … if your ratings reach those specific “schedular” levels, you may be entitled to a TDIU 100% rating.

38 CFR 4.16b has another way – its confusingly called “extra-schedular” TDIU.

In a nutshell, if your service connected conditions, whether they are rated 90% or 10%, are severe enough to cause you to be unable to get substantially gainful activity, you can get a 100% TDIU rating.

These are tough claims to prove, but just know that you do not have to meet the “60/70-40 Rule” to qualify for a 100% TDIU rating.

#4: Special Monthly Compensation – when Schedular Ratings are not enough. 

Special Monthly Compensation ratings are ratings that are typically in excess of 100% in special/unique situations.

For example, if you have one condition that is 100% disabled, and a condition with independent symptoms at 60%, you are entitled to a few-hundred dollars more a month for “Statutory SMC”.

If you need aid-and-attendance of another due to your service-connected condition, there are TWO levels of Aid-and-Attendance for SMC purposes.

If you lost, or lost the use of, one or more organs of sense (sight, hearing, taste, speech, touch) or lost/lost-use-of reproductive organs, you are entitled to SMC for those situations.

Other posts will go into more depth on SMC in the future, but just know that 100% is NOT the highest rating you can get.

A Few Key Rating Principles and Pointers.

  1. The Schedular Rating is only a START point – Extra-schedular Ratings and Analogous Ratings help you to fine-tune your rating to your specific/unique and severe symptoms.
  2. 100% is NOT the highest rating – SMC ratings can take your total VA Disability Ratings well above $8,000 a month if your condition is extremely severe and limiting.
  3. TDIU is not just for the unemployed, and it is not just for those that meet the “60/70-40 Rule”. If your symptoms interfere with your ability to earn a wage above federal poverty levels, or if your symptoms are so bad that the only employment you can get is “sheltered” employment, you may be entitled to TDIU.
  4. The VA will frequently tell you that you cannot service-connect a condition because there is no rating for it on the Schedule – this is nonsense, and is the equivalent of saying that because Bob’s Diner doesn’t have dessert on their menu, there is no such thing as chocolate.  More on that later.
  5. Extra-Schedular Ratings are a “hot topic” in Veterans Law – if you think the schedular rating, even if correctly applied, doesn’t compensate you enough for a unique disability picture, learn about 38 CFR 3.321(b) and seek an Extra-Schedular Rating.

 

Submit a Comment

Your email address will not be published. Required fields are marked *

Take Back the Power in Your VA Claim - Get my Free Email!


Share This
x
1
Post Remaining
[i]
[i]