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Video: Types of 100% VA Disability Ratings

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Video Transcription:

Lindy: Hi there, my name is Lindy Nash and we are coming to you live from Chisholm Chisholm and Kilpatrick here in Providence, Rhode Island and today I’m joined by my colleagues Alyse Galoski and Nick Briggs and the topic today for our Facebook Live is 100% VA Disability Ratings and all of the different ways that we can get there. We do have a lot to touch on but if you have any questions, feel free to leave your question in the comment box here and we’ll do our best to address it. Like I said, we are touching on a lot so if we don’t get to your question feel free to go to our website cck-law.com. There are a ton of great resources there including the disability calculator, blogs, a lot of great resources for you. So with that, I think we should jump in and get started. So Nick, who assigns disability ratings and how do they do it?

Nick: Sure. So typically VA Disability Ratings are assigned by either Rating Officers or Decision Reviewer or Higher-level Review Officers at the Regional Office level and then Board Members themselves will also issue ratings if your case is before the board.

Lindy: Okay, great and so what do they use specifically to rate each individual disability?

Nick: They use what’s called the VA Schedule for Rating Disabilities. Under that schedule, each disability is assigned to specific diagnostic code and then disabilities are rated in increments of 10%.

Lindy: Okay, great and what about at the off chance that your disability doesn’t have a specific diagnostic code, what happens then?

Nick: Sure. There’s obviously a countless number of different disabilities that a Veteran might suffer from and not all of them are contemplated by the rating schedule considering how infrequently it’s updated so what VA will do is they’ll do it by analogy. Meaning, they’ll look for a condition that causes similar symptoms and similar levels of impairment and then assign a rating based off of that other condition.

Lindy: Okay, interesting and then one more question to go off of that. What about if you have symptoms that aren’t necessarily contemplated by the rating schedule, what does that mean?

Nick: It means that the condition is obviously causing problems that VA doesn’t necessarily recognize as being a part of the condition in a normal case but that doesn’t necessarily mean that you’re not entitled to a separate rating for those disabilities. In that case, you might look for an actual scheduler rating which we’ll talk about a bit later or just a separate rating under a different diagnostic code.

Lindy: Okay, great and Alyse why don’t you talk to us about 100% rating scheduler or what that really means.

Alyse: Sure. There’s a couple of ways that you can get a scheduler 100% rating either you can have a 100% rating based on one disability alone so that single disability completely disables you and afford you a 100% rating or you can receive a combined rating of 100% which means that the combination of all of your ratings from each individual service-connected disability adds up to 100%.

Lindy: Okay and without getting too into the weeds. Can you talk a little about VA Math and I know it’s not your typical Math so can you explain how you would get to 100 or just generally speaking VA Math, how it works.

Alyse: Yeah, VA Math is not typical Math if you have for example two 10% ratings that does not mean that you’re necessarily entitled to a 20% rating. We do have a VA Math calculator on our website which you can find by going on our website and searching calculator. That will probably be a very helpful tool for you because frankly, the actual calculation formula that they use is very complicated but some things to know is that they do round up so if the VA Math calculator brings you out to a 75, for example, that means you’re entitled to an 80% but if you’re at a 73 you’re entitled to a 70% combined rating. Essentially, you’re adding all of the ratings that you have into that calculator and seeing what combined rating you come out with.

Lindy: Okay, great and again the website is cck-law.com and we have a great search function right at the top and you can type in Calculator and it will pop-up for you. You can also go to the regulation, there’s a combined table there. It’s a little less straight forward but that’s another way that you can figure out your combined rating. Okay Nick, what if you have additional ratings to go beyond a hundred percent?

Nick: Sure, under the traditional scheme for compensation, the rating caps out of the 100% rating that’s the most you’ll get for either individual disabilities or ones that combined to 100–

Lindy: Uh-hm.

Nick: But there is something called special monthly compensation which we’ll talk a bit about at the end, where you can receive additional forms of compensation based off of particularly severe conditions.

Lindy: Okay and just because you have a 100% rating does that mean it’s permanent?

Nick: If a 100% rating is in placed for 20 years or more they’re not going to reduce that rating unless there’s evidence of fraud in the initial rating being assigned. If it’s less than 20 years then if VA receives an examination showing material improvement in the condition under the ordinary conditions of life–

Lindy: Mm-hm.

Nick: They can pursue your reduction but again it really needs to be both material improvement and improvement under ordinary conditions, not just a simple examination showing improvement.

Lindy: Okay, great and then one last question for scheduler 100% ratings. If you have several disabilities and they all add up to a hundred percent that is great, great news, however, does that mean you can keep working or what does that entail?

Nick: Yeah, absolutely at the end of the day if a Veteran does have a scheduler 100% either for one condition or other conditions, they aren’t fully entitled to continue working but one thing to keep in mind is that the rating schedule is based off of impairment to earning capacity so work is gonna be one of the things that VA considers when they’re trying to figure out whether there has been actual material improvement.

Lindy: Well, great. Okay, that is a awesome round up of scheduler 100% and again you can have one disability rated at a hundred percent you can have several that all add up to 100% but that is what is known as scheduler 100. It is currently around $3,000 a month if I’m not mistaken. That’s just one way of getting at a hundred percent rating, however, there’s also another way known as TDIU or Individual Unemployability and you can get to that in several other ways. Let’s talk about TDIU. Alyse, what exactly is TDIU?

Alyse: Sure. TDIU is what you get when you are determined to be unable to work. Unlike scheduler, it is when you are no longer unable to perform what’s called substantially gainful employment. It can be any condition that can contribute to this both physical and mental and it can– it is actually a combination of all of your conditions. You don’t have to show that your PTSD alone, for example, prevents you from working if your PTSD combined with your knee condition, combined with your back condition, all make it so that you can’t quite work then you’re entitled to TDIU. It is also a 100% rating. You don’t need to have a scheduler 100% rating for TDIU. In theory, you could have only a 10% rating and still be entitled to TDIU if you are – if that 10% condition prevents you from being able to perform substantially gainful employment. Is that likely? No, but in theory, that’s a way that if your scheduler rating is less than a hundred percent you could get the equivalent of a 100% through TDIU.

Lindy: Okay, great and how does one apply for TDIU or can you even apply for TDIU?

Alyse: Yes, you can and you should. Sometimes the record – your record might raise the issue of TDIU but it’s always best in any situation if you feel that you’re entitled to a specific benefit to outright apply for it. You can speak with your representative if you’re unsure about that but with TDIU what we usually see is someone fills out what’s called an 8940 form and they file that. That form basically ask you questions like, when was the last time you worked, what conditions prevent you from working, how much did you make when you worked and other questions like that. That’s typically what we’ll see and then the VA will consider whether you are entitled to TDIU. If the – something that would be an example of the record raising the issue might be that if you made a lay statement that says, I can’t work because my PTSD prevents me from getting along with other people. That would raise the issue but is there a guarantee that the VA or the rating office would consider it? No. That’s why it’s always best to go ahead make an explicit claim yourself.

Lindy: Okay, great. It can be reasonably raised, however, like you said VA doesn’t always pick up on that and so it’s best to be really clear. File the VA 21-89-40 just to be explicit about it but VA isn’t there, you’re supposed to pick up on TDIU when it’s reasonably raised. Okay, great. You can find the regulation for TDIU at 38CFR4.16 A and B but let’s get into the requirements for TDIU. I know we’ve already touched on – typically it’s rewarded when your service-connected conditions do not allow you to work however there are certain scheduler requirements that we hear about all the time. Nick, could you explain what those scheduler requirements are?

Nick: Sure. There’s two main ways to fall under the scheduler requirements, either one condition that’s rated 60% disable or more or multiple conditions with a combined rating of 70% where at least one of the conditions is rated at 40% or more. There are some additional special rules that go into this like multiple lower extremity or upper extremity conditions being considered a single disability and those are rules that you should pay attention to because there might be creative ways to get yourself under 4.69 for scheduler consideration of TDIU but otherwise as long as you hit those either 60 or 40 and 70 marks you’re in a good place and VA will consider it in the first instance usually.

Lindy: Okay, great and – but as Alyse touched on before you don’t have to hit those scheduler requirements to be entitled to TDIU, is that right?

Nick: Exactly. There’s something called the extra scheduler consideration or even if you don’t meet the rating requirements for TDIU. If you’re ultimately still unable to work due to your service-connected disabilities and there’s evidence to prove that in the record then you can be granted TDIU anyway.

Lindy: Okay, great and that is 4.16B in the regulation if you’d like to look at that. Okay and following up on – I know previously we’re talking about scheduler 100% and how if you have that you can work and it’s fine however if you have TDIU are you working or should you be working?

Nick: There are certain situations where VA can still consider and grant TDIU when a Veteran is working. Again, the regulation requires that you be unable to secure and follow substantially gainful employment. VA considers marginal employment. Meaning, lower than the poverty thresholds to be marginal employment. Even if you’re only making $10,000 a year if you’re limited to such little earnings due to your conditions, you still might be eligible for TDIU and then there’s additional circumstances where even if you were to make more than the poverty thresholds, if you’re provided extensive and unreasonable accommodations by your employer you might be able to consider the protective work environment and that’s another situation where you might still be entitled to TDIU if the accommodations are provided based off of your service-connected conditions.

Lindy: Okay, great. Typically, if you’re rewarded TDIU that means that you’re unable to work and that you’re not working due to your service-connected conditions although as Nick just described you can have – or you can be in a protected environment and still be working however you’re really limited and you have unreasonable accommodations in that job or you can be making marginal employment which is based on a poverty threshold per year. I think right now it’s about $12,000 a year, give or take. But yeah, those are two different ways where you can continue to work and receive TDIU but typically your service-connected conditions would be so severe that you’re unable to keep employment. Alright, we have a question from Nate. Nate would like to know if you are 100% TDIU can you request a hundred percent permanent in total? This is actually a great question because I was just about to go into that. Can TDIU be permanent? Is that ever permanent?

Nick: Yes, they can reach a finding of permanent and total disability in a case where a Veteran has TDIU. Sometimes they’ll reach that finding on their own but if they don’t find it permanent total it’s also something that Veteran can specifically apply for which we’ll touch on a bit later.

Lindy: Great, awesome. Great question Nate. Thank you. Were you gonna say something, Alyse?

Alyse: No.

Lindy: Okay. Okay, moving on from TDIU, we’re gonna talk about permanent and total ratings. Alyse, what is a permanent and total rating?

Alyse: Permanent and total rating is essentially exactly what it sounds like. It means that you are – or VA has determined that you are both permanently and totally disabled. It is a classification that means you no longer have to go to exams and that you’re not subject to those reductions if they see an improvement in your exam. They’ve determined it’s permanent, you’re not gonna get better so you no longer have to worry about going to those exams. As Nick was saying, you should feel that if – again, if you feel like you’re entitled to that benefit you should feel like you can go ahead and apply for it. Don’t expect VA to grant it and to identify the problem on their own.

Lindy: Great.

Alyse: That’s it.

Lindy: And how do you know or how would a Veteran know if they are rated permanent and total? What would be the signal there?

Alyse: Usually it’s that you have what’s called DEA benefits which is Dependent Educational and Assistant benefits. What that is that’s a really dependents benefit. It helps dependents get educational benefits and such. You would see that right on the rating decisions. It’s called DEA.

Lindy: Yup, yup definitely we see that frequently in our rating decisions that we get for our clients if the Veteran is rated permanent and total. Usually, it’s written there pretty expressly but if you do have questions you can always reach out to the VA and ask and again always apply for permanent and total rating if you believe that it is deserved.

Alyse: Mm-hm.

Lindy: Okay, I think we touched on everything there. What about temp total rating. Nick, what’s a temporary and total rating?

Nick: Sure, it’s a situation where the disability that’s being granted at 100% isn’t considered to be permanent or stabilized at 100%. It often happens in situations where a Veteran, say, might break their ankle and may undergo recuperation following a surgery on that ankle. These are conditions that necessarily are gonna be subjected to some kind of improvement. VA will assign temporary 100% ratings for certain lengths of time depending on the reason for the temporary and total rating.

Lindy: Okay, great and would you mind speaking to the different types of temporary and total ratings. I believe there’s three.

Nick: Sure, the first main one is pre-stabilization ratings.

Lindy: Okay.

Nick: These are for severe disabling conditions that are incurred in service and they lead to a Veteran’s discharged via medical board evaluations.

Lindy: Uh-huh.

Nick: VA will assign the initial total rating in service and then schedule a review examination within a year of discharge to determine what the current and ongoing severity of the condition is. The next one is based off of the period of hospitalization. If a Veteran is hospitalized for a period of 21 days or more due to service-connected disabilities, they’ll be assigned the 100% rating throughout the period of hospitalization through to the date of discharge. There is one special case where if a Veteran is hospitalized for 6 months or more due to a psychological disability they’ll continue the total rating, indefinitely, following the period of hospitalization until they schedule a review exam in 6 months and then they’ll determine what the proper rating for the condition will be from there and then the last one are convalescence ratings. That means they are the ones that I referenced a bit earlier–

Lindy: Mm-hm.

Nick: Where a Veteran undergoes either op-surgery or suffers injury that requires the use of a cast and those are considered to be totally disabling and the 100% rating will similarly be assigned for at least the period that the Veteran’s hospitalized for the condition but certain things have additional periods of convalescence built into the rating schedule. One common example is a knee replacement where a Veteran will undergo a knee replacement and they’ll be assigned a 100% rating for a year following the surgery–

Lindy: Yeah.

Nick: And if severe residuals continue that can be extended if you requested.

Lindy: Sure. Okay, great. I know we touched on this a little bit but I would always suggest if you think that you’re entitled to one of these temporary and total readings or maybe you just had surgery, you just got out of the hospital don’t rely on the VA to find it on their own. They’re busy people. They have a lot going on. I would suggest applying for it yourself, asking for it yourself. Don’t hide the ball. Let them know that you were just in surgery, you’ve been in the hospital, submit any treatment records you have proving that you have been in the hospital and really do the work for them only because it’ll help you in the long run and will get you the benefit quicker. Would you guys agree?

Nick: Absolutely.

Lindy: Okay, great.

Alyse: Uh-hm.

Lindy: Alright. Alyse, would you mind touching on – well, I think – well, Nick talk about this a little bit but what about cancer? There are residuals from cancer and any temp total ratings that come from that?

Alyse: Yes. They – the rating scheduler does actually equate for when you do have cancer and it does depend on what specific type of cancer that you have but just generally when you do or first diagnosed and you do have an active form of cancer you will receive both temporary 100% after you are deemed to be in remission then you will be re-evaluated based on whatever residuals you do have from that cancer.

Lindy: Mm-hm.

Alyse: If – I’m trying to think of some examples but maybe you had bone cancer and you had – part of your leg amputated then you would be compensated for the fact that you still no longer have a leg even though you’re technically in remission.

Nick: Another common example is prostate cancer.

Lindy: Mm-hm.

Nick: Veterans will be assigned to a 100% rating for that while the cancer is active and then once VA starts rating the condition based off of the residuals–

Lindy: Mm-hm.

Nick: They’ll rate the Veteran based off of your area of dysfunction, erectile dysfunction and similar symptoms and the ratings that VA assigns following the temp total period for residuals those can be appealed if you feel like the condition is more severe.

Lindy: Mm-hm.

Nick: That’s always something to keep in mind once VA does reduce that rating down from 100%.

Lindy: Great. Okay, let’s move on to our last section here. We’ve been talking this whole time about a hundred percent ratings, scheduler and then TDIU. We talked about permanent and total ratings and also temporary total ratings. That brings us to this last section for what if you have certain conditions that are so severe that they weren’t above a 100% rating and I know we spoke about this earlier but 100% is actually the maximum percentage rating that you can get. It doesn’t get higher than that per se, however, there is something called special monthly compensation otherwise known as SMC and again that’s rewarded for when you have really severe disabilities that bring you above and beyond the rating criteria or the rating schedule. Let’s talk about SMC. Nick, what is – I just explained to you but what is SMC?

Nick: Sure. Like you mentioned it’s for situations where a Veteran oftentimes might already be at a 100% based off of their severe conditions but there are certain aspects that the 100% rating doesn’t necessarily cover. Some of the more common types of SMC are aid and attendance. Meaning, the Veteran requires the regular aid and attendance of another person to do things like using the bathroom, getting dressed, bathing. Often times a Veteran might suffer from lower extremity disabilities that prevent them from being able to walk on their own, needing to use a walker or a wheelchair. VA can grant special monthly compensation based off of that loss of use. There are also certain ancillary benefits like special home adaptations, things like that that can be granted in those specific situations and then ultimately there are even higher levels of SMC for certain situations where a Veteran might need aid and attendance due to two separate conditions which could result to an even higher level of compensation, so.

Lindy: Yeah and SMC can get pretty complicated. It’s very detailed. We actually have a great Facebook live that we’ve already done on special monthly compensation. Definitely check that out for more specific details there. You can go to our Youtube page or here on Facebook in our past videos. Also, check out our website. Again, we have a great blog and awesome resources about SMC. Nick, just to round up our discussion there. Do you apply – should you apply specifically for SMC?

Nick: Sure, so it’s another one of those situations where, in theory, VA is supposed to reasonably raise and adjudicate these issues–

Lindy: Right.

Nick: When they have evidence of loss of use or the need for assistance from another person but they don’t always do that so it’s always good for a Veteran to specifically apply for these benefits because they’re entitled to apply for it and VA needs to adjudicate the issue if the evidence is there.

Lindy: Great. Alright, we have gone through all the different ways of getting 100% ratings for VA disability benefits. Again, it was the scheduler rating, TDIU, permanent and total ratings, temporary total ratings and SMC otherwise known as special monthly compensation. To end our Facebook Live here, Nick and Alyse do you have any final thoughts for the viewers? Anything that they should take away from this conversation?

Alyse: Yeah, with these types of ratings especially with TDIU and some of the types of SMC when you’re talking about aid and attendance and situations like that, it is very important that you do submit lay evidence as well as evidence from yourself and anybody who’s observed your conditions. ‘CauseĀ  a lot of the times the VA exams that they give you don’t really get the full picture of how disabling your conditions are especially when it comes to TDIU and the fact that you can’t work. There might be a sentence or two in there about that but if you can provide a detailed sentence – excuse me, a detailed statement about it or your loved one can or even a former employer can that can be a very powerful piece of evidence.

Lindy: Great.

Nick: Yeah and we’d touched a bit on this earlier but VA grades conditions based off of the schedule for rating disabilities.

Lindy: Right.

Nick: There are certain diagnostic codes but not all conditions are covered. Certain diagnostic codes list specific symptoms but not all symptoms are covered and VA tends to treat the rating schedule as this monolithic thing that they need to apply and only apply. It’s important that if you’re experiencing symptoms and limitations that aren’t covered by the rating schedule, to make sure that you still point them out because at the end of the day due to the service-connected disability VA still needs to consider them and rate them.

Lindy: Great. Okay, well I think that brings us to the end of our Facebook Live. Thank you so much for joining us. Again, I’m Lindy Nash from Chisholm Chisholm and Kilpatrick. If you have any questions don’t hesitate to reach out to us or your representative or our colleagues at the DAV. Anyone can help you with this. It is complicated and it’s detailed and can often be confusing so definitely ask questions, check out our website and we will see you next time. Thanks.