Using the VA Combined Ratings Table

Video Transcription:

Maura Clancy: Hello, everyone. Thank you so much for joining us today for our CCK live discussion. My name is Maura Clancy. I am an attorney here at Chisholm Chisholm & Kilpatrick. I am joined today by Kevin Medeiros and Nicholas Briggs. Kevin is also an attorney at Chisholm Chisholm & Kilpatrick focusing primarily on cases at the US Court of Appeals for veterans claims. Nick Briggs is an accredited claims agent that focuses mostly on cases that are pending at the Department of Veterans Affairs and also at the Board of Veteran Appeals. So, thank you both for joining us today. As I mentioned before, today’s CCK live discussion is going to be focusing on VA’s combined ratings. So, today’s topic is going to talk about the way in which individual disability ratings combined to a combined rating. We have made a full topic and discussion out of this because the VA math that is used is not the same as regular math, so to speak. There are certain rules that apply and it can get a little bit technical and confusing. So we are hoping that today’s discussion clears up some of that confusion. If you have any questions at any point or you are interested in any additional resources on this topic, please feel free to visit our website at cck-law.com. If you are watching us on a platform that has the ability to leave questions and a comments feed, please feel free to utilize that as well. So, to get started just to provide a little bit of context. I kind of mentioned this already but we are talking about the way in which VA combines individual disability ratings. So, just to provide some background so we are all on the same page, veterans start by filing claims for service connection if they believe that they have injuries or disabilities that are due to their military service. If those claims are granted and VA decides that a condition is related to service then they will grant service connection for that condition. But then they assign an individual rating for that condition that supposed to encompass or reflect the severity of the condition at issue. But what happens when veterans have multiple individual disabilities with a bunch of different assigned ratings is what leads to the combined rating process. So, the ratings that VA comes up with are not simply added together. They are combined in a special way that VA does the math as a starting point. We want to mention that you can utilize the combined ratings table that is located in VA’s regulations at 38 Code of Federal Regulations 4.25. That is where you are going to find the table that you can utilize to figure out what a combined rating should be, and we are going to go through how to use that table in today’s discussion. But Kevin, can you start us off by kind of explaining if the math isn’t straightforward. So if for instance a disability that is rated at 10% and another disability that is rated at 30% do not simply add to 40% as you would think intuitively. Can you give us just a brief overview about how VA does their math and their calculations?

Kevin Medeiros: VA uses a formula to determine what percentage of the veteran is disabled and then what percentage is not disabled, or in other words which percentage remains efficient. The percentage that is considered to remain efficient is essentially the portion of the body and mind that still retains the capacity to work. So, it is the remaining work capacity. So, it is important to note that we are talking about service-connected conditions and those that are assigned ratings. Veterans might have other conditions that are not service-connected, but that impair their ability to work are not considered disabling for the purposes of their VA rating. So, in order to determine the combined rating based on service connecting conditions, you should start with the highest individual disability rating and then subtract that from 100%. So, we start with the 100% which represents the non-disabled veteran. So, if a veteran has a service-connected condition that is rated at 40% disabling, say for a back condition, then they are 40% disabled and 60% efficient or not disabled. You subtract that 40% for the back condition from 100% of what was the complete non-disabled body and you get to the 60% number that is not considered disabled. After that, each subsequent rating is a reduction of the non-disabled portion that remains. So, a reduction in this scenario of that 60% rating. Once the 40% like I mentioned is subtracted from the 100%, you have 60%. And then any other service-connected conditions will be subtracted from that remaining 60%. So, they will be considered percentages of the remaining 60% of the non-disabled portion. So, what we are really talking about essentially is percentages of percentages once we get past the initial disability rating. Nick is going to discuss a step-by-step way and example to work through how the VA map actually works based on those percentages of percentages.

Maura Clancy: I think the context and the ability to kind of go through an example as Nick is going to do in a minute, unfortunately for him, is actually really helpful to try to put this information and apply it. But I think Kevin what you said before is helpful at least in the way that I understand how these calculations are made is that you really are taking a percentage of a percentage. So, you start with the highest rating, you deduct that essentially from a hundred percent, and then the remainder the part that is not rated up to a hundred is really what you are looking at when you are trying to figure out if additional conditions are service connected at different percentages. Will the combined rating increase? And if so, how much will it increase? I think a lot of veterans here know the fact that it is very difficult to get a 100% rating on a scheduler basis or based on individual disabilities with the VA. And not everyone understands why that is the case. A lot of people think well, I have a lot of different ratings, a lot of different disabilities. They definitely add up to a hundred if you do standard math, regular math. But it is really difficult as you take more and more of that non-disabled percentage to reach the 100 number which is why this topic is important for people that are trying to figure out why their rating is at a certain place. But it is also kind of important to understand how it works because it is not intuitive at all and it can be really tricky. So that being said, Nick we are going to throw this back to you to give us the step-by-step. So, can you kind of go through an example of different conditions that might have a different rating and how VA does the math with those?

Nicholas Briggs: So, the example that we are going to run through together involves a veteran who has three service-connected disabilities: a diabetes, a traumatic brain injury, and tinnitus. Of those conditions, the one with the highest rating is 40% for diabetes. So, 40% of the 100% efficient veteran is a 40% disability rating. So, once that first disability is accounted for we are left with a 40% disabled veteran and a veteran who is considered 60% efficient. So, when we go to combine that second service-connected condition, we are going to be taking a percentage of that remaining 60. So in this case, the next disability is rated at 20% for the traumatic brain injury, and 20% of 60 is 12% or 1/5 of 60. So, when you add those two disabilities together, you get a combined rating of 52%, 40 plus the 12 that you just added for the traumatic brain injury. And once that calculations done, you are left with a combined rating of 52% and a remaining efficiency rating of 48%. The final disability that we are adding is tinnitus, which is rated at 10% disabling. So we take 10% of the remaining 48% efficiency, which is 4.8%. Just move that decimal point one place to the left and then we are left with 52% plus 4.8% is a final combined rating of 56.8. Once we have that final number, the last step is to round it up to the nearest ten or down to the nearest ten depending on where you are. So in our case, we are at 56.8, so we would round up to 60% and that is going to be the combined rating that would be available to the veteran. So in this case, a single veteran with the 60% rating based off of the three conditions that we just went through will get paid at $1,131 as of 2020. But again, that is meant to just be a quick example with just three conditions. So, as straightforward as that might seem it becomes increasingly complicated as we try and add additional conditions, which is why you should try and use resources that are available to you including VA zone combined rating stable, which is included in the regulations.

Maura Clancy: There are two things I want to mention Nick that you reminded me of when you were going through that example. So the first is that, why do we care about combined ratings? And I think a lot of people know this but just in case anyone is unaware, the combined rating that a veteran has dictates how much their monthly compensation amount will be. So, a 50% rating pays you a certain amount per month. A 60% rating pays you more per month than the 50% rating would. So, the reason why the combined rating is important is because it lets veterans know how much disability compensation they can expect to receive month-to-month on an ongoing basis. And it is another reason why checking the math and trying to figure out whether additional grants of disability and additional grants of service connection for various conditions will increase your combined rating. Because it is really only if your combined rating is increased that your monthly payment amount will increase. So, we have definitely seen the situation where a veteran might be already service-connected for a condition at 50% disabling. They have been seeking service connection for a second condition for a long time. When VA eventually grant service connection, which is a good thing, if they only assign a 10% rating or a 0% rating or what have you, it is not going to necessarily result in a lot of increased compensation if the combined rating doesn’t also increase. So that can be difficult to understand also. Sometimes veterans receive grant letters and decisions that grant them additional benefits, but it is only if their combined rating changes that they will expect to get some additional monthly compensation. Another thing that Nick mentioned that is a great point is that to save yourself the aggravation there are tools and resources out there that you can use to do this process, this map process. Some of us do use the combined ratings table in the regulations. Again, it is at 38 CFR 4.25. And Kevin is going to lead us through kind of how that table works and how you might use it if you want to. But we also have additional resources to just plug in the numbers and be able to actually calculate this amount on our website. So, we have a CCKVA disability calculator. You can find that on our website if you Google it. It is one of the first links that should come up for you. And if you are trying to figure out what your combined rating will be, if you are going to receive an additional grant of benefits, or if you are trying to check to make sure that you are being paid at the appropriate monthly rate. You can actually input the different disability percentages that you have for your various conditions in the disability calculator, and it will tell you what the combined rating is supposed to be based on those numbers. So, this is a good resource not just as I said to check what your monthly amount should be but also to check to see if any pending claims or appeals that you are working on might result in additional benefits because your combined rating will increase. So, definitely use the calculator on our website as a resource. I cannot stress it enough. It is extremely helpful. It saves a lot of time. It removes a lot of the guesswork that we have kind of been having to talk about doing the math ourselves today. I use it daily. I am pretty sure that Nick and Kevin do as well. And it is extremely helpful and saves a lot of time. That being said, the table is still available in the regulations. So, Kevin can you kind of lead us through, if you are looking at the combined ratings table in VA’s regulations, how exactly does it work? How do you go about using it?

Kevin Medeiros: Right. So, like you mention Maura, it is located in section 4 .25 under the Code of Regulations. The way to work through it starts with a veteran’s highest rating. So, you want to identify which rating is highest and find that rating on the left side of the table, the left column running vertically. So, let us say that a veteran’s highest rating is 50%. The next highest is 40%. Each for their own individual conditions. The combined rating is where the highest rating on the left and the second highest rating on the top row running horizontally. It is where they intersect. So, when you locate the 50% rating on the left, the 40% rating on the top, and where they intersect, the veterans combined rating would be 70%. Now, that is the first step for a veteran with two conditions. And if that veteran has more than two conditions, you kind of run through it again starting with the combined rating. So, this veteran has a 70% combined rating for a 50 and 40% condition. You take the 70% combined rating and start again on the left side of the chart without rounding. So, 50 and 40 works out nicely to a 70% rating. You will locate that on the left side of the chart and take the third highest rating, and find that on the top row. And then again, it is where the two ratings intersect. So, this veteran with the 70% combined rating for the first two conditions and an additional 30% rating, those two would intersect at 79%. As Nick alluded to earlier, you round up. So, this veteran would have 75 or higher, has a 79% rating. So, the veteran would receive an 80% rating. And also as included earlier, you do the rounding at the end. So, if the same veteran had more ratings, they would take that 79%. Locate that on the left, take the fourth highest rating and do that again, and then round at the end. So, that is how to work through the chart. I personally think like more or does that the online calculators are a little easier, but VA’s combined table rating does make it easier than trying to work through it all on your own and do the math on your own. And I think this example kind of lays out how to do that.

Maura Clancy: Now, to make matters a little bit more complicated, there is also something called the bilateral factor. So, Nick I am going to ask you a couple of questions about what the bilateral factor is. But just as a precursor, it is an additional calculation that is sometimes in play when figuring out what a combined disability rating should be. Again, we will say it a lot probably today. You can use the combined ratings calculator on our website and it will account for the bilateral factor. So, if you are concerned about, I am not really sure how that would affect the way that I do the math. It is something that is built into the calculator. But Nick, tell us what the bilateral factor is when it applies and what veterans should know about it?

Nicholas Briggs: So, it is an additional boost that is meant to account for veterans who experience disabilities that affect extremities. So, you imagine the scenario where a veteran has lower extremity radiculopathy, stemming from a back condition, but the radiculopathy affects both legs. So, because it affects both sides of the veterans body, both extremities, it is VA’s way of accounting for the impairment being shared across both sides under the assumption that there is an additional level impairment caused by both legs being affected. So, what that means in practical terms is that there is a slight boost to the combined rating overall by first taking whatever ratings of veterans assigned for their extremities, combining them, and then proceeding with the rest of the combinations that we have gone through before. You can find the combine, the bilateral factor rules at 38 CFR 4.26. It is the very next regulation after 4.25 that we have been talking about up to this point. And it also provides a pretty straightforward breakdown of how this is supposed to work. The example that it gives is imagine a 10% rating for one leg and a 10% rating for the other. You go ahead and you combine those like you would combine any other disabilities. So, there is a 10% rating, a 90% efficiency left, 10% of 90 is 9%. So, when those disabilities combined traditionally you are left with 19%. But because they affect parrot extremities, you are allowed to add a 10% boost. Meaning you take 10% of 19 or 1.9, you add it to 19. So those two 10% disabilities actually combine to 21 rather than 19. And you are allowed to then combined with everything else so that extra 2% that you get here and now might make it easier for you to get to a higher combined rating later on in the process.

Maura Clancy: I think to Nick’s point, the idea behind the bilateral factor is that VA wants to give special recognition to cases of disabilities that do affect both extremities. So, a veteran is that much worse off if they have functional impairment in both arms as supposed to just one. And so, rather than the standard VA calculation of the way to combine those ratings, the bilateral factor is a way to recognize just that added disability that comes with the experience of having both arms disabled, both legs, etc. We mentioned before that it is very difficult to get to a scheduler 100 even using the bilateral factor just because of the way that the percentages of percentages process works as you near 100% disability. You have a much smaller percentage of the efficiency left that Nick was talking about earlier. And so, taking a percent of a small percent is very limited upward movement, but there are other ways to get a scheduler. I am sorry. There are other ways to get 100% disability compensation. There are also other types of compensation that might be relevant to talk about that are not so dependent on the combined ratings process or on scheduler ratings. So, Kevin, there is one alternative way to get to a 100% rating and monthly payment. Can you tell us about that and what the requirements for it are?

Kevin Medeiros: Right. So, like you mentioned Maura, say a veteran is that 90% and has an additional 10% rating, 10% of 10% is only is only 1%. So that veteran could only get to 91%, but you need 95 to get to that scheduler or 100%. But veterans can get to 100%, one way is a total disability rating based on individual unemployability. The shorthand commonly used for that is TDIU. There are scheduler requirements for TDIU that remove some of the additional hurdles that VA has in place when a veteran does not meet the scheduler requirements. But the scheduler requirements for TDIU are one disability rating of 60%. So that is just for one condition or two conditions with one at least 40%. So, one at 40% and the other combines to at least 70%. So, you could have that one condition just to simplify that at 60%, or multiple conditions adding up to 70% with one at least 40%. So that is the scheduler requirement. Like I said, it removes some of the additional obstacles when a veteran does not meet those conditions. Then the other requirement is that the evidence shows that the veteran is unable to obtain or maintain substantially gainful employment based on those service-connected disabilities. And the common way for a veteran to apply for that 100% rating based on the individual unemployability is by filling out what the VA refers to as VA form 21-8940. It is telling VA that you are unable to work based on the service-connected conditions. It provides them with some information about your work history and why you believe you are unable to continue working or haven’t been able to work. So if a veteran is unable to work, VA recognizes that if it is due to service-connected conditions under the whole disability scheme that is designed to recognize the average impairment and earning capacity even if a veteran is not rated 100% under the scheduler for their scheduler conditions. They can get to that 100% if they are service-connected conditions preclude them from working.

Maura Clancy: Great. And as Kevin mentioned, if TDIU is something that you are pursuing it is important to make sure that VA has a copy of a completed VA form 21-8940. We have a lot of other resources about TDIU because it is a really important benefit for people to be aware of. If a veteran is experiencing disabilities that do preclude employment, but is nowhere near getting a scheduler 100% rating which is difficult to do anyway. TDIU is an option that veterans should know about. VA typically will not process it at all unless you fill out the form 8940. They are sticklers about that. We have thoughts about the way that they treat the importance of that form because technically TDIU is a component of an increased rating claim, but VA doesn’t always see it that way. So to save yourself some headaches, it is important to get that form if you are looking for additional benefits based on your inability to work that you can tie to your service-connected disabilities and limitations. Another way to get paid at the 100% rate is if you have temporary periods of total disability. So, there are certain circumstances that warrant the assignment of a 100% rating for one of your service-connected condition. So for instance, if you have a service-connected disability, if it is a cancer and you have to undergo treatment for a certain amount of time, or if you have a service-connected orthopedic disability but you have to undergo surgery for that condition. VA will recognize that you might be entitled to a temporary total 100% rating to reflect the amount of time that you were undergoing serious treatment or hospitalization for that condition. So, it is not something that will last and will guarantee future payments of a 100% rating indefinitely. But for the time period in which you are hospitalized or receiving a special kind of treatment, it is worth making sure that VA has those records if you are service-connected for the underlying condition. Because sometimes that extended treatment, extended hospitalization can entitle you to a 100% rating, at least for a temporary time. For the months that you are entitled to the temporary 100% rating, your monthly payment will be in accordance with the 100% rate. So it is definitely worth exploring if that applies to you. Just know that it is temporary. That is what the name suggests and it is not something that will just be assigned forever. Additional compensation is available for veterans that meet other types of circumstances with other types of more severe disability symptoms. So Nick, can you talk to us a little bit about ways to get additional disability compensation based on the special monthly compensation criteria?

Nicholas Briggs: So up to this point, we have largely been talking about the different ways to get that 100% rate, which will pay you at a little over $3000 every month. But when we are talking about special monthly compensation, these are additional benefits reserved for veterans who are usually more disabled than even that 100% rating scheduler contemplates. So in these situations, we tend to see veterans who are so disabled by their service-connected disabilities that they are unable to do certain tasks at all, or at least not without someones help or without assistive devices. So for example, you may be able to establish loss of use of the lower extremities. If you are unable to walk on your own due to radiculopathy, like we talked about earlier. There might also be situations where you require the aid and attendance of another person because you are unable to bathe, dress, feed yourself on your own or there is something about your daily environment that is dangerous to you that you are unable to sort of cope with without the assistance of others. So, if you are able to establish that your service-connected disabilities require this additional assistance or this additional level of accommodation, you can get SMC at the initial level, which is L which pays at about $3,800. There are also other forms like SMC-K where you get paid an additional 100 or so dollars per month on top of your traditional compensation amounts. That is usually reserved for things like loss of use of the creative organ or something like that. But these other forms of compensation aid and attendance, loss of use or even higher levels of SMC are each paid at their own specific level, and that compensation is paid in lieu of the traditional rating schedule. So you are not going to get 3000 for 100% plus 3,804 for aid and attendance. You will just get paid that $3,800 if so for aid and attendance. But again, we are talking about benefits that go above and beyond that 100% rating. So, it is still important to know that these things are available even if you have topped out on the combined rating schedule.

Maura Clancy: That covers I think whatever we had planned for today, but did either of you have any additional closing thoughts or practical tips for people that might be in a situation where they need to actually work with the combined ratings table or they have a question about how VA does the combined rating process?

Nicholas Briggs: It is important to know that most of the time you are not going to need to do this yourself. VA does handle the calculations for you when they are putting together your combined rating if you get a benefit granted or service connection granted. But that is not to say that they are perfect at the process either. We have certainly all seen times in our practice where they have either failed to apply the bilateral factor at all or applied it incorrectly. So, there might be something wrong in their calculations that could have actually prevented you from getting that next higher level of compensation. So, it is worth knowing how to use it and knowing that these resources are available. But ultimately if it is not something that you yourself can handle, you could look to possibly visiting a national service organization like DAV or seeking representation from an attorney as well because they are all well-versed in figuring these issues out for you.

Kevin Medeiros: I agree. And I think these tools are also helpful for veterans considering whether to even file a claim say for an increased rating if they can check what the math might be with the next highest rating and find out that their rate is so high that it might not affect their combined rating. It might not be worth going through the trouble to pursue a claim. So, that is another use for these tools that veterans can consider.

Maura Clancy: I agree. I think this topic kind of borders on strategic thinking for some veterans that are knee-deep in the claim and appeal process. Sometimes you have to think about whether pursuing increased rating claims for certain conditions versus filing new claims for other conditions, whether any of those avenues are actually going to increase your combined rating. Obviously, you can proceed on even if your combined rating might not change because there are other benefits to having service-connected disabilities. But when veterans are particularly concerned about whether they might receive additional compensation based on a claim or appeal, I think this knowing about how to do this math and knowing where to look for the resources can be helpful to set expectations and to kind of understand what the next steps in the process might be. And I definitely agree with Nick that although the VA typically gets these things right on their own, it is definitely worth checking on your own if you think that there might have been a mistake made. The exception is with the special types of benefits or non-scheduler types of benefits like TDIU and SMC. Those are things that if you think they apply to your circumstances but you haven’t been granted benefits for those things, you have to raise that yourself. You have to kind of go through the process of making VA aware that you want those things considered because they will not automatically do that. They will automatically do the math to combine your ratings though. So, that is just good information to be aware of hopefully. I think that is all we had for today. Thank you both so much for going through a particularly complicated topic. And we hope it was helpful to all of you out there, and we also hope to see you next time. Thanks.

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