Keeping the VA to the Scheduler Criteria

08 Aug 2017

We all know of the importance of the VA Schedule for Rating Disabilities. It sets forth the criteria – the symptoms or limitations – for virtually every type of condition, disease or disorder, and assigns corresponding percentage disability ratings based upon these criteria. In theory, the percentage ratings represent the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.

Keeping the VA to the Scheduler CriteriaWhile the Schedule attempts to approximate the actual impairment level caused by service-connected disabilities, it often falls short of that goal. Some scheduler disability ratings underrate the actual impairment level of a veteran’s disability; and, even a few may overrate the actual impairment level.

Nonetheless, except for certain minor exceptions, all claims must be evaluated by the scheduler criteria and fixed percentage ratings. This means that a VA adjudicator – whether a Rating Specialist, Decision Review Officer or a Board Veterans Law Judge – may not consider criteria or symptoms apart from those listed in the Schedule to assign a lower disability rating than what is determined by the Schedule.
In other words, if the listed criteria are met, the veteran is entitled to the corresponding percentage disability rating, even if the disability may not actually impair the veteran to the extent of the assigned disability rating.

In Massey v. Brown, 7 Vet.App. 204 (1994), for example, the Court held that the Board erred when it found that a higher rating was not warranted based on factors and symptoms that, while representative of Mr. Massey's mental disability and arguably related to his earning capacity, were not specifically included under the applicable diagnostic code. Id. at 207-08.

Similarly, in Drosky v. Brown, 10 Vet.App. 251 (1997), the Veterans Court vacated a Board decision which denied the veteran entitlement to a thirty (30) percent disability rating. In that case, the veteran had service-connected rheumatic heart disease with an enlarged heart, one of the criteria for a thirty (30) percent disability rating.

The Board denied entitlement to this rating, reasoning that the veteran’s enlarged heart was “expected” and not “significant, abnormal, or disabling.” Id. at 255.
The Court vacated the Board's decision, holding that the Board erred by considering factors outside the rating criteria—namely, whether the appellant's enlarged heart was unexpected or significant.

More recently, in Jones v. Shinseki, 26 Vet.App. 56 (2012), the Veterans Court criticized the Board for considering the beneficial effects of medicine in determining the veteran’s disability rating, when this factor was not listed in the applicable diagnostic code. In that case, the veteran sought an increased rating in excess of ten (10) percent for service-connected irritable bowel syndrome. Under the schedule, the maximum 30% rating was warranted for a “severe” disability with “diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.” 

The Board denied the higher disability rating, reasoning that “anti-acid medication provided some relief of symptoms.” The Court held that the Board erred by considering the ameliorative effects of medication, as this factor was not listed in the applicable diagnostic code. Id. at 63.

Practice Pointer:

Always carefully check the listed criteria for each percentage rating under the applicable diagnostic code of the Schedule. If the veteran’s condition meets the criteria for a certain disability rating, then as a matter of law, he or she is entitled to that rating. A VA adjudicator may not consider factors outside of the Schedule to assign a lower rating.

A version of this article was published on LinkedIn by Mark Lippman on August 4, 2017.