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Veterans Law

How to Get a 100% VA Disability Rating?

July 31, 2019
disability rating

What is a VA Disability Rating?

A VA disability rating is a percentage assigned to a service-connected disability based on the severity of the condition.  VA uses the VA Schedule for Rating Disabilities (VASRD) to assign diagnostic codes and disability ratings for service-connected conditions.  The VASRD is located in Part 4 of Title 38 in the United States Code of Federal Regulations.  The VASRD explains how conditions will be evaluated for purposes of receiving a VA disability rating.  Each rating criteria will describe symptoms and/or treatment for the specific condition, and VA will assign a percentage, ranging from 0 to 100, according to each set of criteria.  Overall, VA disability ratings are meant to compensate veterans for the average impairment in earning capacity caused by their service-connected condition(s).  Generally, the more severe a disability is, the higher the VA disability rating will be.

A 100 percent disability rating, or a total disability rating, is the highest percentage that can be given for service-connected compensation purposes.  This rating is reserved for veterans with extremely debilitating service-connected conditions that typically make them unable to work and mostly unable to care for themselves.  As of 2020, the current monthly compensation rate for veterans with 100% disability ratings is $3,221.85.  Importantly, the difference between the monthly payment for 90% and 100% is just over $1,200 per month.  As such, 100% disability provides the veteran with significantly more disability assistance.  There are several ways in which veterans can obtain 100 percent disability ratings from VA.

How to Get Service Connection for VA Disability Benefits

Before receiving a VA disability rating, veterans must first establish service connection for their claimed condition(s).  Direct service connection generally involves the following three elements: (1) a current, diagnosed condition; (2) an in-service event, injury, or illness; and (3) a medical nexus linking the current, diagnosed condition to the in-service occurrence.  Various types of evidence can be used to establish the above-mentioned three elements of service connection.  The most common types include medical records, service personnel records, lay statements, and doctor’s opinions.

Ways to Get a 100% Disability Rating from VA

100% Schedular Disability Rating 

As indicated above, VA uses the VASRD to assign disability ratings for service-connected conditions.  If a veteran has a single service-connected condition that meets the requirements for a 100% disability rating, VA should assign it accordingly.  However, veterans can also receive a 100 percent schedular disability rating if they have multiple service-connected disabilities that add up to 100 percent.  Specifically, when a veteran has multiple service-connected conditions, each with its own disability rating, VA combines them together using “VA Math.”  To calculate a combined disability rating, VA starts with the veteran’s highest disability rating, and then works down the list of disabilities, combining them from highest to lowest.  Once VA has combined all of the disabilities, it will round up to the nearest 10 and the veteran will receive the level of monthly compensation associated with that rating percentage.  Therefore, veterans can get a 100 percent disability rating if their multiple disability ratings combine to 100 percent.

For example, if the veteran is rated at 70% for a psychiatric condition, VA will take 70 percent from 100 percent.  In other words, if the veteran is 70 percent disabled, that means they are now 30 percent non-disabled.  As the veteran becomes service-connected for additional conditions, VA will take a further percentage from the remaining 30 percent.  For example, the same veteran becomes service-connected for a right knee condition and is assigned a 10 percent disability rating.  When taking 10 percent from 30 percent, the outcome is 3 percent.  From there, the 3 percent is added to the existing 70 percent, which gives the veteran a 73 percent combined disability rating.  Again, VA will either round up or down depending on what the combined disability rating comes out to.  In this case, the veteran would remain at a 70 percent disability rating.

Importantly, VA completes additional calculations when veterans are service-connected for bilateral disabilities.  Essentially, VA is recognizing that if a veteran has a disability that affects both sides of the body, it is inherently going to be more disabling than a disability only affecting one side of the body.  In these situations, VA applies the “bilateral factor,” which results in an additional 10 percent.  For example, a veteran is service-connected for both knees, each rated at 40 percent, respectively.  VA will combine those ratings first, resulting in a raw total of 64 percent.  Then, VA will take 10 percent of that 64 percent and add it to the total.  Here, it would be 64 percent plus 6.4 percent, which results in 70.4 percent.  Finally, VA will round that total to 70 percent.  In this example, the bilateral factor is the difference between a 60 percent and a 70 percent combined disability rating

Total Disability Based on Individual Unemployability (TDIU)

Veterans can also receive a 100 percent disability rating if they qualify for total disability based on individual unemployability (TDIU) – a disability benefit that allows for veterans to be compensated at VA’s 100 percent disability rate, even if their combined disability rating does not equal 100 percent.  TDIU is awarded in circumstances in which veterans are unable to secure and follow substantially gainful employment as a result of their service-connected conditions.  There are two ways in which veterans can qualify for TDIU under 38 CFR § 4.16(a):

  • The veteran has one service-connected disability rated at 60 percent or more; OR
  • The veteran has two or more service-connected disabilities, one of which is rated at least 40 percent disabling, with a combined rating of at least 70 percent.

Importantly, if a veteran has multiple service-connected conditions, there are five ways they can be combined to reach the qualifying 60 percent or 40 percent for TDIU purposes:

  • A disability of one or both of your upper extremities OR one or both of your lower extremities can be combined into one rating.
  • Disabilities stem from “common etiology or a single accident” can be combined into a single rating.
  • Disabilities that affect a single body system can be combined into one rating.
  • A number of conditions incurred in action can be combined into one rating.
  • Former prisoners of war who incurred multiple disabilities during their time in captivity may combine those disabilities into a single rating.

If veterans do not meet the requirements listed above, they may still be considered for TDIU under 38 CFR 4.16(b).  Here, VA will determine if your case should be referred to the Director of Compensation Service for extraschedular consideration.

VA Disability and Working with TDIU

As mentioned above, TDIU is generally reserved for veterans who are unable to work; however, if a veteran is able to maintain what is called “marginal employment, “they can still qualify for TDIU.  Generally speaking, marginal employment is the opposite of substantially gainful employment.  If a veteran is working, but their income does not exceed the federal poverty threshold for one person, they can still be considered for TDIU.  For example, if a veteran is only able to work 8 hours per week at a restaurant and their earnings are below the poverty level, their employment may qualify as marginal.  Therefore, they may be able to continue working while receiving VA disability compensation at the 100 percent level.

Veterans who are working and earning an income above the federal poverty threshold may still be entitled to TDIU if they are working in a protected work environment, described as employment that allows certain accommodations without which they would not be able to continue working.  Importantly, VA recognizes that protected work environments do not fall under the umbrella of substantially gainful employment.

More specifically, a protected work environment could be demonstrated by one or several of the following being true of the veteran’s situation:

  • The veteran does not need to complete critical job functions due to their limitations (e.g., interacting with customers)
  • The veteran is not as productive or as reliable as other employees
  • The veteran does not receive any negative consequences for erratic behavior or mistakes that stem from their disability

To demonstrate that you work in a protected work environment, you will likely have to submit supportive evidence, such as a lay statement from your employer.  VA makes determinations regarding protected work environments on a case-by-case basis.

Applying for TDIU

To apply for TDIU, VA requires veterans to complete Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.  The purpose of this form is to provide VA with additional information about the veteran, such as their level of education and employment history, to supplement the request for TDIU.  It is important to note that VA must assume each veteran is seeking the highest disability rating possible upon applying for benefits.  Oftentimes when VA grants TDIU, they will assign the effective date as the date the veteran submitted their VA Form 21-8940 rather than when they actually became entitled to TDIU.  If the veteran is granted TDIU, establishing the proper effective date can result in substantially greater backpay.

Is TDIU Permanent?

In some cases, TDIU can be permanent; however, it is not automatically permanent.  The operative question is whether VA deems the veteran’s unemployability as being something that is going to last into the future.  In other words, is it reasonably likely that a veteran is going to be able to obtain and maintain substantially gainful employment in the future?  If the answer is no, then VA may assign a permanent status to the grant of TDIU.

Permanent and Total 100% VA Ratings

Total disability is synonymous with a 100 percent rating.  Again, total disability ratings can be assigned to veterans with one service-connected condition rated at 100 percent, multiple service-connected conditions whose ratings combine to 100 percent, or to those eligible for TDIU.  Permanent disability means that VA has found that the severity of the disability is expected to continue for the remainder of the veteran’s life, with no improvement.  VA does not require those assigned a permanent and total disability rating to undergo any further medical examinations.  Importantly, if a veteran is assigned a permanent and total disability rating, VA cannot reduce it.

Temporary Total Ratings

Veterans who are rendered temporarily incapacitated due to a service-connected condition may be entitled to receive a temporary 100 percent disability rating.  VA offers three forms of temporary total ratings:

Prestabilization

Prestabilization ratings are temporary, immediate disability ratings assigned to veterans who have recently been discharged from military service with a severely disabling and unstable condition that is expected to continue for an indefinite period of time.  These veterans are assigned disability ratings in increments of 50 percent and 100 percent over a period of 12 months following their discharge date.  According to 38 CFR § 4.28, VA will only assign a prestabilization rating of 100 percent if substantially gainful employment is not feasible or advisable.  Prestabilization ratings are not assigned if veterans are immediately eligible for a 100 percent schedular disability rating under the regular provisions of the rating schedule, or 100 percent based on TDIU.

Hospitalization

Temporary 100 percent hospitalization ratings are assigned to veterans who have been hospitalized for over 21 days as a result of a service-connected condition.  The veteran must be receiving treatment at a VA medical center or other VA-approved hospital.  Benefits will continue until the last day of the month in which the veteran stopped receiving treatment for the service-connected condition.  If the veteran is hospitalized for more than six months, their service-connected condition should be evaluated under the VASRD for consideration of a schedular 100 percent rating.

Convalescence

The third and final form of temporary total ratings assigned to veterans by VA is convalescence.  This temporary 100 percent disability rating is assigned to veterans who underwent treatment or surgery for a service-connected condition at a VA medical center or VA-approved facility.  To qualify for a temporary and total convalescence rating, a veteran must have:

  • Undergone treatment or surgery with a convalescence (i.e. recovery) time of at least one month; or
  • Experienced severe postoperative residuals that resulted from surgery (e.g. surgical wounds are not completely healed, the veteran is rendered housebound, there is need for continuous use of crutches or wheelchair); or
  • Experienced the immobilization of one or more major joints “by cast without surgery”.

Tips for 100% VA Disability Ratings

Tip #1: Consider Secondary Service Connection & Aggravation

Even if a disability does not change their combined rating, veterans should always file claims and get as many conditions service-connected as reasonably possible.  Veterans should consider that they can also establish service connection on a secondary basis.  A secondary service-connected condition is one that resulted from a separate condition that is already service-connected.  For example, a veteran is service-connected for a knee condition and later develops arthritis in that knee.  Here, the veteran’s arthritis may warrant secondary service connection if it is the result of their service-connected knee condition.  This may be helpful for both the schedular 100 percent disability rating, by increasing the veteran’s combined disability rating, and TDIU purposes.

Overall, veterans should make sure that they are considering all avenues of service connection and all of the ways in which they may be entitled to disability compensation.

Tip #2: Medical Evidence, Lay Evidence, C&P Exams

Again, establishing service connection is essentially going to come down to the evidence that is submitted.  Medical evidence is arguably the most important type of evidence relative to establishing service connection insofar as it is very probative (i.e., affording proof or evidence).  When it comes to service connection issues, medical evidence is critical in forming a nexus.  Medical evidence may include the following: treatment notes, doctors’ opinion, specialists’ opinions, and more.

Lay evidence may also be highly beneficial and as powerful as other types of evidence.  Veterans should consider submitting lay statements, or affidavits, from themselves, as well as their spouses, children, and employers.  Any individual who can detail the onset and/or progression of the veteran’s condition may be competent in writing a statement.  Finally, expert opinions are valuable forms of evidence.  For example, in a TDIU case, veterans may seek an opinion from a vocational expert.  A vocational expert has the training, the background, and the experience to assess a veteran’s limitations from their service-connected conditions and then explain what that means in terms of the veteran’s ability to obtain and maintain employment.

Tip #3: Attending C&P Exams

Oftentimes VA adjudicators will rely on C&P exam results to make decisions on veterans’ claims.  Obtaining C&P exams is part of VA’s duty to assist veterans in developing their claims.  Essentially, if VA thinks the veteran’s case is missing a piece of information that is necessary to issuing a decision (e.g., a diagnosis, nexus opinion) it will schedule the veteran for an exam.  It is extremely important to veteran to attend all C&P exams for which they are scheduled.  In general, VA is more likely to deny claims when veterans fail to attend their scheduled exams.  When attending C&P exams, it is important for veterans to be honest with the examiners about their current symptomatology and how it affects their daily life.

Tip #4: Look for Errors VA Makes on Disability Claims

When receiving an unfavorable decision from VA, veterans should look at the “Reasons and Basis” section.  This section is supposed to list out the reasons and rationale for the denial.  As such, it is important to examine the reasons that VA gives and ensure that the department has assessed all of the evidence that has been submitted.  Many times, VA will make errors that result in the improper denial of benefits.  For example, VA may consider a non-service-connected condition as part of its analysis for determining whether a veteran is entitled to TDIU.  However, this is not a proper analysis for determining entitlement to TDIU.  If a veteran has a non-service-connected back condition, VA may decide that they are unable to work due to this back condition.  Yet because the back condition is not service-connected, TDIU is denied.  VA should not be allowed to consider non-service-connected conditions when determining whether a veteran is unemployable.  Instead, the focus should be limited to service-connected conditions and how they preclude a veteran’s ability to work.

Tip #5: If You’re Unsure of How to Get 100% Disability, Seek Representation

If veterans strongly believe they are entitled to a 100 percent rating, but are unsure of how to get there, they should consider seeking representation from a Veterans Service Organization (VSO), an accredited agent, or an accredited representative.

Other Benefits for Veterans with 100% Disability Ratings

Veterans who qualify for 100 percent disability ratings from VA may also be eligible for housing, healthcare, education, and other benefits.  For example, veterans with 100 percent disability ratings are eligible to enroll in Health Care Priority Group 1 through VA, with no co-payments required.  Additionally, veterans may be entitled to a grant from VA to help build a new specially adapted house, adapt a home they already own, or buy a house and modify it to meet their disability-related requirements.  Veterans with total ratings may also qualify for military identification cards.

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