Once you’ve fought and beat the VA on service connection of your injury, the next battle is fighting to get the right impairment rating and the proper effective date in your VA benefits claim.
Last week, the Court of Appeals for Veterans Claims (CAVC) issued a decision that should help Veterans out as they fight the VA to get the proper impairment rating for their service-connected condition.
The case was Jones v. Shinseki (CAVC Cause No. 11-2704, decided October 26, 2012) – click on this link for the Court’s actual decision).
In Jones, the Veteran had been service connected at 10% for Irritable Bowel Syndrome (IBS). [to read the actualy IBS rating table, click on this link and scroll down to Diagnostic Code 7319]. By all accounts, this condition was horrible – with symptoms ranging from debilitating stomach and abdominal spasms, to nausea and frequent instances where the appellant soiled himself. Clearly, he felt he was entitled to a rating higher than 10%.
The reason he was set at 10%, though, was because the VA decided that he wasn’t entitled to a higher rating because the medication he was taking for IBS was helping with some of the symptoms. This would be all fine and good, except for the fact that the VA Rating Schedule doesn’t allow the VA to consider the effects of medication.
The VA writes its own Rating Schedules – you can find them at 38 CFR Table 4.
These rating schedules list all the criteria that the VA can take into account when setting an impairment percentage. If the VA wants to include criteria, it just needs to have the regulations re-written like any other Federal Agency.
(There are many conditions where the VA has included, as a rating criteria, the effect of medication on the condition, so the VA isn’t really unaware of this option).
The Court of Appeals for Veterans Claims (CAVC) found that the VA can’t just go applying factors to determine a rating that the VA itself didn’t allow to be considered. TheCourt of Appeals for Veterans Claims (CAVC) said that the VA commits “…legal error by considering the effects of medication on the appellant’s IBS when those effects were not explicitly contemplated by the rating criteria.”
This is one of the reasons I think it’s a good idea to have an attorney represent you in the appeal of your condition.
I’ve seen the VA try to sneak by all sorts of silliness to justify a lowered rating.
I’ve even seen eye conditions rated using the ratings tables for back conditions.
I’ve seen diseases rated as entirely different disease entities.
I’ve seen the VA flat out ignore their own ratings requirements – particularly on conditions like Traumatic Brain Injury (TBI), Post-Traumatic Stress Disorder (PTSD) and arthritis of the knees.
Even if you don’t contact the Attig Law Firm, contact a lawyer with experience in handling Veteran’s benefits cases – there may be errors in your decision that the VA has slipped by you.
