(1) Introduction: Ratings and the VA Rating Schedule
- When and how does one receive a disability ratings?
- Why does your rating matter? What are VA ratings based on?
- How does the VA Rating Schedule work? What are diagnostic codes?
- Who assigns disability ratings?
- (2) What does it mean that VA rates “residuals”?
(3) VA Math: How to Calculate Combined Ratings
- What if you have multiple VA-rated disabilities? How does VA combine ratings?
- What is “efficiency” in the context of VA disability ratings?
- (4) What is the bilateral factor?
(5) Rating Reductions & Increases
- Can VA ratings be reduced or increased over time?
- What are “staged ratings”?
- What to do if VA proposes a rating reduction
Special Kinds of VA Disability Ratings
- (6) Permanent and Total (P&T) Ratings
- (7) Extraschedular Ratings
- (8) Pyramiding
- (9) Analagous Ratings
- (10) Ratings for Secondary Service-Connected or Service-Aggravated Conditions
(11) How to Appeal a Rating Decisions
Brad: I’m Brad Hennings and I’m an attorney here at the firm. I’m also joined by Emma Petersen to my right and Jonathan Green to my left. Both of whom are attorneys at the firm and very familiar with this particular topic. So, what we’re going to talk about a little bit today is VA disability ratings. Before we get into that I just want to give a shout out to our website. If you’ve got any questions about anything please go to our website at cck-law.com. In addition, if you have any questions about what we’re talking about today or otherwise please feel free to post them in the comments section on Facebook, or otherwise leave information there. Let’s start out with what are disability ratings? When and how does one receive a disability rating?
Emma: VA assigns everyone that’s been disabled or injured due to something that happens in service, just the basic concept, get the disability rating. And that rating is based on how severe the disability is. It’s all centered around impairment to your earning capacity, so how that impacts your ability to work? You file with VA, you file a claim. They say, “Okay, this disability happened due to your service, your military service, and it is X percentage severe. That ranges anywhere from 10% all the way up to a 100% meaning totally disabled, and in the increase in 10% increments.
Brad: What are these VA ratings based on and why does your rating matter?
Jonathan: Well, it’s actually really important because the– I’ll answer why does it matter first because it’s going to determine how much money you’re going to get every month or the amount of compensation. As Emma said, it goes all the way up to 100%. You can get a non-compensable 0% rating but if you get, let’s say, the lowest the 10% rating that’s worth– that equates to about one $136 for a single veteran every month. Then if you get all the way up to 100% it’s close to $3,000 a month for a single veteran. It is very important because there’s obviously a big difference between $3,000 a month and $136 a month. It’s based on the evidence of record. After a veteran becomes service-connected for certain disability or injury, they will then look at how severe the condition is and what they should be rated at. They will do that by looking at the C file, the claims file, and looking at the evidence to see how severe the condition is. If the evidence shows that it is severe enough to warrant a 50% disability rating then theoretically they will get assigned to a 50% disability rating. That’s where a little bit of the advocacy comes in because often times we are arguing that a veteran should be entitled to a higher disability rating than what was assigned. We’ll get into a little bit of the diagnostic codes and things like that but VA has what’s called a rating schedule, and that rating schedule is generally from 0 to 100 and for each respective disability or disease. That’s what they’re looking at when they’re determining the severity.
Brad: Speaking of the rating schedule how does the VA rating schedule work and who is assigning these VA disability ratings?
Emma: Like Jonathan mentioned the rating schedule is sort of the source of how VA decides your disability rating. In the rating schedule are diagnostic codes DC’s, and there is a diagnostic code I think there’s a little over 800 of them for any number of diseases that you can think of. Now, there are diseases out there and disabilities out there that are not in the rating schedule but a vast number are covered. Each disease or disability has different criterion that is listed, that correspond to different ratings, and I think we have a graphic that demonstrates this. Let’s say you’ve got a disability and symptom A and B will get you a 10% rating. Symptom A, B, and C will get you a 30% and you have all the symptoms A through E that will get you to a 60% or a 100% rating. What you have is adjudicators at the regional offices looking at the claims file, the evidence in your record, VA examinations. Looking for these symptoms and impairments and corresponding it with, lining it up to the rating schedule to figure out what rating you should be assigned.
Brad: In addition to the VA employees at the regional offices, the employees at the board of veterans appeals on appeal can also assign VA disability ratings on appeal. What does it mean when disability ratings are based on residuals?
Jonathan: They’re looking at how severe the disease or disability is and what’s interesting is when you’re trying to establish that a veteran should be service-connected for something, a lot of focus is on what happened in service. Once that condition is determined to be service-connected, less focus is placed on actually the disease or injury that happened in service, the event or injury that happened in service, and more about how severe the condition is. Really what you’re looking at is the resulting impact of that condition, sort of the residuals. I guess cancer is an example that we often think of as a good example for the residuals. If you have an active cancer generally speaking that’s going to be rated at a hundred percent disabling. However, if it goes into remission then you don’t just automatically drop to zero because you could get rated based on the residuals of the disease itself. That could range from again 0 to one 100 depending on how severe those residuals are, but just because your cancer is no longer active doesn’t mean that you do not get compensated for the condition.
Brad: Another example, a common example would be if you broke your leg or broke your ankles let’s say in service, you’re service connected for the residuals of those broken legs or ankles which would mean any sort of pain, weakness, difficulty moving the joint. Those would be the residuals upon which you’d receive at VA disability rating. What if you have multiple VA rated disabilities? What is your disability pay based on?
Emma: I think that can be the most confusing and frustrating issue for many veterans out there. Many folks want to know, “I have a 50% for my PTSD and I have a 50% for my sleep Apnea, why am I not at a 100%? Why is this letter from VA telling me I’m not getting a 100%?” That’s because VA does not add up your disabilities. They do something called combining and through the magic of VA math, it gets exponentially harder to get up to that 100% each time you add a new disability. Basically, VA does not add things. They combine them and they have an explanation of how that works. Basically and I think we’ve got a graphic for this too, VA starts with the premise that you’re a whole person. You’re not disabled, you’re able to work completely and with each disability, they’re knocking off a little bit.
Let’s say you start with, I don’t know, a 20% disability. Now VA is saying, “Alright, you’re 80% non-disabled, 20% disabled.” Let’s say you get a new disability that’s 10%. They’re going to take 10% of your 80% non-disabled, and so on and so forth. We have an example of a juice glass. Every time you get a new disability you’re taking a gulp of juice and the starting point gets a little bit lower. As you go down it just gets harder and harder to kick those numbers up to 100%.
Brad: This is an example of what they call VA math, that you’ve probably heard many times because as Emma was just saying, it doesn’t add or subtract like you normally think. What is this really mean, Jon? What is efficiency in the context of these ratings and what’s the bilateral factor and how does that impact this?
Jonathan: Well, the idea is they’re trying to compensate these disabled veterans for the average impairment in earning capacity. If you get a– the example that Emma gave you get a 20% rating. Generally what that means is that 20% your average impairment and earning capacity is reduced by 20%. The example that she gave that means that 20%, sorry, 80% is then considered not disabled. Each additional disability say you get another 20% disability on top of that, the calculation wouldn’t be adding another 20%. It would be taking 20% of the 80% that is still there and not disabled, which would be 16%. Then you add 20 plus 16 getting to 36 and you round up, so you round up to the next ten and you round up or down, and you would get to 40. You would be paid at the 40% disability rate. When you’re talking about efficiency, that’s the percentage of you that is not disabled, and you can see that efficiency language in 38 CFR 4.25. It gets more confusing and this is not easy stuff. As Emma said, you hear these type of complaints all the time, “What? I actually have more than a 100% disability rating”, because you add these up and it’s like, “Why am I getting paid at the 70% rate?”, and it’s because of VA math. The bilateral factor is something where if you have service-connected for your right or left arm or your right or left leg, before you get started combining the ratings you look at the bilaterals first. Say your right arm and your right leg are each at 20%, then you combine those as you would any disabilities and you would get 20 and 20, and as we just went over that actually equals 36, you get 36. Then because your right and your left leg are affected they give you a bonus, they give you a bump of 10%. They take that 36 and add 10% of the 36 which is 3.6, so then you get to 39.6, around up to 40, so the number then becomes 40. With the bilateral factor, you don’t have 36, you have 40. Sometimes it changes the overall disability ratings, sometimes it doesn’t. In that example if that’s all you have, is a 20 right leg 20 for the left leg, you get 40 with or without the bilateral factor. However, once you start throwing on some other disabilities that little 10% bump might change your overall disability rating. The order of operations is you do the bilateral factor first, add the 10% and then you start doing the other disability ratings.
Brad: As Jon just talked about, any time you’re going into order of operations when you’re trying to figure this out, it can get very complicated. Please go to the Chisholm Chisholm & Kilpatrick 2018 VA disability rating calculator. We’re going to post a link I believe leave in the comment section, and that should help you get through some of this complicated VA math. Now, talking about a veteran’s VA rating now, can they be reduced or increased over time?
Emma: Absolutely. So, let’s start with increasing first because that’s more beneficial to veterans, and that’s what many folks’ claims are based on. Anytime you feel that your disability has increased in severity you can file an increased rating claim with the regional office, and continue to pursue that as an appeal in its own right until you feel that you can receive the rating that you deserve, or until you’re unable to appeal it further. That can happen at any point. You could be service-connected for 30 years in certain rating and just due to the passage of time, your disability is getting worse, you can file a brand-new claim to increase that rating.
Brad: Let me ask a follow-up to that. I know many of the veterans we talk to are concerned about filing a claim for increase because they’re worried that in fact they’re going to be decreased on that or another disability. Can you talk a little bit about that process?
Emma: Yeah. That is a concern and that that can happen, unfortunately, anytime you do file increased rating claim, not any time, but sometimes when you file an increased rating claim if they send you for a VA examination or you submit medical evidence and it actually shows an improvement, VA can propose to reduce you and bring that rating down. Something else that can be thrown in the mix that can be a little confusing for veterans is staged ratings. You file a claim for an increased rating and VA can determine that, “Well, for this five-year period it took us to decide your claim, “you’re at 30% for this first two years but then 20% for these second two”, and sometimes veterans are concerned, “Was I reduced?” No, you weren’t, you were just assigned staged ratings based on medical evidence showed throughout the appeal period, but those are all options. Increases, staged ratings at different levels throughout an appeal period, or unfortunately a reduction, a proposal to reduce.
Brad: Now, just to let everybody know again this is Brad Hennings. We’re with Chisholm Chisholm & Kilpatrick. We’re talking about VA math and ratings today. I just wanted to mention that if you do encounter the situation where VA proposes to reduce your rating, we strongly suggest that you either talk to your veteran service organization representative, accredited VA agent, a VA accredited attorney – someone to help you with that because it can get complicated. There is a great deal of case law, legal case law that governs this process that’s beyond the scope of this discussion, but it can be very complicated. Again, please reach out to someone if you’ve got questions on that. Now, another thing many veterans are looking for is to be considered P&T or what they call permanent & total. Now, what does that mean in the context of VA ratings?
Jonathan: It’s pretty good to get. You want to be considered permanent & total if you’re at a 100%. Permanent & total means exactly what it says, that you’re considered a 100% disabled so you’re going to be paid at the 100% rate, and you’re considered permanent. The condition has been found not likely to get better. If you reach this status it affords you certain protections, mainly VA recognizes that your that your condition is permanent, not likely to improve, so basically they’re going to leave you alone. They’re not going to schedule you for periodic compensation and pension examinations to see if the condition has gotten better, to possibly reduce you. They’re just going to leave you be and let you continue to receive you’re a 100% disability rating. It’s not automatic, so just because you get a 100%, you’re found to be a 100% disabled doesn’t mean you’re considered P&T. What you want to look for is get your rating decision usually in the back section what we call the code sheet. It might be indicated somewhere there, actually specifically indicated permanent & total. Usually, under the issues, it’ll say a 100% and then you’ll see a second issue entitlement to chapter 35 dependents educational systems benefits that basically means that you’re found to be permanent & total as well. Sometimes it might be in the front part of the rating decision where it specifically states, it depends on which regional office is issuing the rating decision, but you should look for it there. Don’t automatically assume that simply because you get a 100% that it’s considered permanent.
Brad: If you do look at your rating decision and don’t see that P&T or the permanent & total designation, that’s something you can ask for a request for the regional office, and they’re required then to adjudicate whether they think that that is an appropriate designation for you. Further, this includes not just schedular or 100% ratings but also total disability due to individual unemployability or TDIU, which Jon was saying is paid out at the 100% rate. Let’s talk a little bit more about some different ratings. What’s an extra schedular rating and why are they awarded?
Emma: We could spend probably multiple sessions just talking about what an extra schedular rating is and how one gets one? Basically, we’re talking about the rating schedule earlier that the symptoms and criteria that are required to get certain ratings. Diseases and disabilities change from person to person and there could be a situation in which someone has symptoms or impairment that’s not contemplated by the rating schedule. In that instance, they can apply for an extraschedular rating meaning outside the schedule, and that’s a complicated process where you have to demonstrate sort of a two-step situation that you’re not being adequately compensated by your rating, that it’s causing an impairment to your earning capacity and that it really needs to be referred, I guess ends up being referred to someone known as the Director of Compensation Services for consideration. It’s sort of a special circumstance. It’s a rare occasion. It’s something where the rating schedule which is pretty comprehensive is just not adequate enough to compensate you for your particular circumstances.
Brad: Let’s talk a little bit about pyramiding. I don’t know, but many veterans will see that VA will use that term and not necessarily understand what that means. What does pyramiding mean in the VA rating context, Jon?
Jonathan: Well, I think in any government context they do not like double dipping. You’ve probably noticed that and things like tax deductions and credits and things like that. The government does not like to allow you to double dip. Pyramiding is sort of the VA rating version of that where they’re trying to prevent people from double dipping on their disabling symptoms. If you are service-connected for two conditions and some of the symptoms overlap with – say you have post-traumatic stress disorder and you’re rated for that, and some of those symptoms are the same symptoms that you are also compensated for, for your traumatic brain injury for example, you theoretically should not be able to be compensated both under the symptoms for the PTSD that overlap with those of the TBI.
Brad: I’m sorry, I didn’t mean to cut you off. I think we’ve got some graphics examples. An example of pyramiding that we’re going to put up and then, example of no pyramiding or the pyramiding doesn’t occur. I’m sorry Jon, I didn’t mean to cut you off there.
Jonathan: Yeah, no. Thank you because the graphic actually is really good because it shows the situation where it would be pyramiding. I think it lists the symptoms as like A, B, C, D and then we’re under the PTSD and then under the TBI some of them are the same letters, you cannot get compensated for both of those symptoms, for the symptoms for both that fall under the PTSD and the TBI. If the symptoms do not overlap then you can get compensated for the whole range. Bottom line, VA doesn’t want to have to pay you twice for symptoms that are overlapping.
Brad: Let’s talk about when symptoms are not overlapping. What’s an analogous rating, Emma?
Emma: Well, first when symptoms aren’t overlapping in the sense that I think just go back to Jon’s example between PTSD and TBI. Let’s say you have depression and anxiety, and those are both caused by your PTSD and your TBI. You couldn’t get two 10% for each of those, let’s say. Let’s say you have depression anxiety and headaches. Headaches has nothing to do with your psych condition but everything to do with your TBI. Those are places in which they can be spread out and get two separate ratings for each of those disabilities. Let’s say you have a condition that’s not PTSD or TBI, both of which are in the rating schedule. Let’s say you have a disability that’s just not listed because like we were talking about earlier with extraschedular ratings, the rating schedule just can’t compensate for everything. There’s a wide range of things that can happen out there. If that’s the case, if you have a disability that’s not specifically listed in the rating schedule, VA will look for a different code that is similar to what you have. They look at the function that’s being affected. What bodily functions are being affected, the location anatomically in your body and the symptoms that are produced, and they try to find something that’s close enough. They will assign you a rating under that disability. I think an example that I’ve seen actually, a remarkable number of times is something called Costochondritis, which is inflammation in your– it’s kind of a constant stitch in your side. There is no code for Costochondritis, so they end up rating it as a muscle injury in the same anatomical region.
Brad: Okay. Now, is this just up to VA’s discretion or are there rules about when they can choose an analogous rating versus the rating that’s called for?
Emma: There absolutely are rules. If you have a disability that is listed you have to get rated under that code. If you have a disability that could be under any number of codes then it’s up to VA to get you the most favorable rating they can. Pick the code that’s most applicable but they have a duty to maximize and get you the best rating they can. If you have a disability that’s not in the code then they do have to rate you by analogy. That’s something for you and your VSO or accredited agent or attorney to look at closely, and determine whether that’s the best option.
Brad: So, if it’s not listed you can certainly as a veteran say, “Hey VA, you’ve made a mistake here. I think my disability is better compensated under this other code.”
Brad: How are rating is determined for secondary service connection?
Jonathan: Well, for secondary service connection, if you have a service-connected disability and say, it causes another condition that isn’t otherwise directly related to service, you can get service-connected for that and compensated for that because it is actually related to your military service because it was caused by a service-connected condition that was. As far as the ratings go, once you’re service-connected for a condition it would be rated the same as a condition that was directly related to service. It would be looked at, same rules. You can’t do any pyramiding. You can’t overlap with the symptoms but the severity of it would be– the analysis would be the same as though it were a condition directly related to service. There shouldn’t be any difference in how its assessed for severity.
Emma: Except in the case of conditions that are aggravated and that’s important to note because sometimes you might see a rating that doesn’t quite line up with the diagnostic codes. It was 10, 30, 50 and you have a 20. If you have a disability that was aggravated by another one and that’s how you got service-connected, VA is going to look at the baseline. What was a disability before you were service-connected and where is it now and do some subtraction and come up with your rating that way?
Brad: Is that also how would work if you had a service aggravated condition, you had a disability going into service and then it got worse during the service?
Jonathan: If they are able to parse out.
Emma: Yes, if, that’s a big if.
Brad: Now, if veterans disagree with the rating VA signed to one of their disabilities, what can they do?
Jonathan: Well, find somebody to help them appeal it. As Brad said before, find a service organization, find a law firm, they can do it themselves, appeal it. That which is becoming a little bit more complicated than it was probably a few months ago, with the availability of the rapid appeals modernization program and how they can appeal it, there’s a few more options available. But generally speaking if they disagree with it, they should file what’s called a notice of disagreement. If they’re in the rapid appeals modernization program and want to file in one of the different lanes available to them under that, they can do that, but I would definitely encourage them to seek help from a representative who’s accredited to assist disabled veterans.
Brad: With that, we’re at the end of our prepared questions and prepared remarks. Is there anything you’d like to add or to sum up Emma?
Emma: Other than that just VA math is a little tricky and just to go back to what Brad mentioned earlier, you can hop online to our website. We have a ratings calculator that will help you through that process because it gets frustrating. You’re working on sheets of paper, you’re going back to, I don’t know, fifth grade, fourth-grade math with fractions and percentages. Definitely, use that calculator and it will give you an idea of where you are and where you could be. Where you’re going in terms of what your rating is going to look like and what your monthly payment could possibly be.
Jonathan: I would just say that don’t get frustrated. A lot of what we do is appeal the ratings, arguing for a higher rating, so it is not uncommon to get assigned a rating that you disagree with because you actually feel like it actually impacts you more than the credit you’re being given and the compensation that you’re being given. Don’t get frustrated. I encourage you to make sure you appeal, make sure you’re aware of the deadlines. As Emma said, as far as VA math goes it is tough in the Code of Federal Regulations, 38 CFR 4.25, you can use that table to kind of figure out what you should be getting. The firm Chisholm Chisholm & Kilpatrick has a good disability calculator to use that includes variables for bilateral factor so you can kind of go on there and play with it yourself and kind of figure out how it should be rated because this stuff isn’t easy, so use all the resources you can.
Brad: Well, with that again, this is Brad Hennings. I just want to thank Emma Peterson and Jonathan Green for joining me today and talking a little bit about VA math. Again, please check out our website at a cck-law.com or check us out on Facebook. Please feel free after the fact, to leave us any questions, call us, email us, send us messages, we’ll be happy to respond as we can. With that, thank you and have a great afternoon.