Meandering Musings

Everything not fit to publish

VA Disability Primer

| Comments

VA disability is one of the most well-known benefits but it is also one of the least understood due to its complexity and the subjectivity involved.

Contrary to popular belief the VA does have a duty to assist the veteran in his claim. This includes many things but it essentially requires the VA to help you obtain evidence to prove your claim including providing examinations at no charge. It does not include agreeing with your position or spending time or manpower on frivolous claims. This duty exists through all claims and appeals except in two conditions discussed later. Outside those two cases, it is not an adversarial process although it can often feel like it. To get so far into the process where the duty to assist vanishes can take years, the best way to avoid a long claim process is to do your best to document everything from the beginning.

Your first step should be to see a Veteran’s Service Officer (VSO) to discuss concerns and go over your records. Your service and medical evidence and any relevant lay evidence are going to win or lose your case. The more relevant evidence that you submit from the beginning the higher your odds of getting a favorable decision and the lower your odds of having an extremely protracted fight at the various appeal levels. Spending a month or two getting your ducks in a row might just save you years of aggravation.

Disability Claims

There are basically two types of disability claims: a new claim and a claim for an increase in an existing disability. A new claim can be your first claim or if you feel you now qualify for disability benefits of a different issue or an increase of a current disability. The steps involved are about the same except for a new claim the VA has to first determine if it is service connected or not.

Before we begin, it should be noted that a vet cannot have a dishonorable discharge, although a less than honorable discharge may be okay depending on the circumstances. Honorable discharges are good of course, unless said disability was caused by misconduct.

The first step is to determine that a disability exists. It has to be chronic and disabling and on the list of recognized disabilities. If it isn’t explicitly listed you still could get it rated if it is closely related to a recognized disability. It also has to be connected to your service. This is by far the most difficult part of the claims process and the most critical. No service connection, no benefits for it.

There are three methods of connecting a disability to your service. The first is primary connection and is fairly straightforward. It is an injury or illness that occurred during service and is an ongoing disability. Probably the best way to establish this is through a medical review board that leads to medical retirement or discharge but that is not required. Military treatment records work also. With an exception in the paragraph below, no treatment records means that your odds are long but not necessarily impossible. You will also need what is called a nexus, that is a link to an in service event to your current issues. A doctor will need to be able to say that it is at least likely as not (50% or greater probability) that said disability is related to your service. The very best nexus is continuing treatment records from military doctors to civilian (VA or private). The next method is secondary connection. That is a separate issue caused by a service connected disability or its treatment.

The other method of connection is what is called presumptive disabilities (38 CFR 3.307 – 3.309). These cover several things and may have time limits. The first is a list of disabilities that if they manifest within one year of separation from active duty are presumed to be service connected. There are others like Agent Orange exposure or if you were at Camp Lejeune at one time or another over a period of several decades and have an illness that has been recognized as likely caused by whatever you were exposed to. You need proof that you were in the affected area during the timeframe authorized and that you have one of the disabilities listed. With a presumptive claim, you do not need to establish that your conditions was at least 50% or greater likelihood that your service caused or aggravated your issues. If you have a disability not listed and you were there, you will have to find another route to service connection.

National Guard and Reserve service do not confer 24/7 on duty presumption so only disabling issues incurred while on drill or deployed will likely count for VA purposes.

Disability Ratings

Once service connected, the method used to connect is irrelevant to the rating. It will be rated by the schedule of ratings in the regulations. The schedule of ratings also lists which disabilities are ratable. If you don’t fit perfectly in a rating code the VA can choose what most closely resembles your disability. The bad part is that the ratings are often subjective. One rater might rate you 50% for a disability and another 70% and it is very possible that neither gets dinged for being wrong because both could be valid depending on how the evidence is interpreted. This is important to understand if it comes time to appeal. The rater is graded on how many claims are worked and completed and its accuracy and can lose their job with low production points and quality ratings.

Ratings are generally between 0% and 100% with 10% increases but most specific ratings will have different gradients and many max out at less than 100%. Migraine headaches have a max rating of 50% despite the fact that they can often be 100% disabling. Ratings are often grouped together and treated as a single disability. The most obvious one is mental health disorders. Whether you have generalized anxiety disorder or PTSD the rating is all about symptoms and how it affects your daily life. You can also only be rated with a single mental health diagnosis but symptoms of all can be rolled into the rating. Typically issues that a person are considered to be born with (such as personality disorders) are not ratable. Below is the schedule of ratings for mental health, as an example.

General Rating Formula for Mental Disorders:

    100% - Total occupational and social impairment, due to such symptoms as:
        gross impairment in thought processes or communication;
        persistent delusions or hallucinations; grossly inappropriate
        behavior; persistent danger of hurting self or others; intermittent
        inability to perform activities of daily living (including maintenance
        of minimal personal hygiene); disorientation to time or place; memory
        loss for names of close relatives, own occupation, or own name

 70% -  Occupational and social impairment, with deficiencies in most areas,
        such as work, school, family relations, judgment, thinking, or mood,
        due to such symptoms as: suicidal ideation; obsessional rituals
        which interfere with routine activities; speech intermittently illogical,
        obscure, or irrelevant; near-continuous panic or depression affecting
        the ability to function independently, appropriately and effectively;
        impaired impulse control (such as unprovoked irritability with periods
        of violence); spatial disorientation; neglect of personal appearance and
        hygiene; difficulty in adapting to stressful circumstances (including
        work or a worklike setting); inability to establish and maintain
        effective relationships

 50% -  Occupational and social impairment with reduced reliability and
        productivity due to such symptoms as: flattened affect; circumstantial,
        circumlocutory, or stereotyped speech; panic attacks more than once
        a week; difficulty in understanding complex commands; impairment
        of short- and long-term memory (e.g., retention of only highly learned
        material, forgetting to complete tasks); impaired judgment; impaired
        abstract thinking; disturbances of motivation and mood; difficulty in
        establishing and maintaining effective work and social relationships

 30% -  Occupational and social impairment with occasional decrease in work
        efficiency and intermittent periods of inability to perform occupational
        tasks (although generally functioning satisfactorily, with routine
        behavior, self-care, and conversation normal), due to such symptoms
        as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or
        less often), chronic sleep impairment, mild memory loss (such as
        forgetting names, directions, recent events)

 10% -  Occupational and social impairment due to mild or transient symptoms
        which decrease work efficiency and ability to perform occupational
        tasks only during periods of significant stress, or; symptoms controlled
        by continuous medication

 0% -   A mental condition has been formally diagnosed, but symptoms are not
        severe enough either to interfere with occupational and social
        functioning or to require continuous medication

You might be thinking that a person could fit multiple ratings and you would be right. This is where the subjectivity is involved. I have a 100% mental health rating and have 3 100% items, 3 70%, 3 50% and 2 30% listed in my award letter. I am not completely sure but I think what put me at 100% was that I applied for unemployment rating(discussed later) and mental health is the only other rating where ability to work comes into play and my examiner opined that I have total occupational impairment and close to total social impairment. It is much easier to give someone a 100% rating than unemployment because they have to monitor the latter.

Once rated, you are given a combined rating. If you only have 1 disability rated, it is very simple you are rated what that item is. If you have one or more 100% ratings, you have a combined 100%. If you have two or more and no 100% it gets a little more complicated. It is often called ‘VA Math’ but it is a system used around the world. It is really called the ‘whole man system’. It starts out saying you are 100% abled and combine ratings from there. I will use my old ratings as an example. I had 50% mental health, 50% migraines and 20% seizure disorder and a few 0% ratings which aren’t a factor here. Take the highest first and work down. I am now considered 50% abled and 50% disabled after the first 50%. Every rating after this takes a proportional piece of the abled pie. The next 50% is taken out of the 50% abled for a value of 25%. This leaves me 75% disabled. If that were all my ratings, it would be rounded to the nearest 10th value, which would be 80%. I still have the 20% left, so 20% of 25% is 5% which brings me to 80%.

In my case the 20% was worthless for compensation which is the bad part of the whole man system. Each subsequent disability is worth less even if it is significantly impacting you. If you were at 85% you would need a single additional disability at 70%(or multiple disabilities that combine to near 70%) or higher to get to 100%. If you had a 90%, you need another 50% so you can qualify for the much better paying 100%, could take significant increases. Four 50% ratings will get you to 94% rounded down to 90%, but an additional 10% rating will get you to 95%. The easiest way to figure this out is to use the VA’s table.

To further complicated matters there are bilateral factors. These are disabilities on paired limbs or muscles. This adds another 10%. The bilateral disabilities are combined first from highest to lowest, then the 10% is combined and then the rest of your disabilities are combined as described.

A 0% rating may be disheartening since there is no compensation attached to a single 0% rating but there are lots of benefits, including free care for those ratings. The biggest is that it means your disability was service connected which is the most difficult part of the disability claim. You can appeal the 0% or later on put in for an increase if your condition worsens and you don’t have the service connection hurdle in your way. If you have two or more 0% ratings and no other ratings, and those ratings affect your ability to work you can get a 10% combined rating.

Any incorrect or misleading information is unintentional. Please comment with corrections, any important omissions and good citation for it.

Comments