As discussed earlier, the VA compensation system is based on a “schedule” which assigns a numerical value to medical conditions from 0% to 100% in 10% increments. These “schedular ratings” are intended to represent the average percentage of impact on a veteran’s employability from service-connected conditions. The smaller the impact from the condition or conditions, the lower the rating and the smaller monthly benefit paid to the veteran. A 100% rating, in theory, is granted when the service-connected condition or conditions prevent a veteran from holding any gainful employment.
A 100% rating, however, does not mean that a claimant cannot work or has to quit his or her job. It only means that Congress has established that the rated condition would affect the average individual’s ability to hold gainful employment. The same is true for other rating levels. The average person is considered, the specific claimant may actually be affected more or less. In any event, the claimant is not penalized for working with a schedular rating. This is not true for a total disability rating based on individual unemployability discussed in the next section.
Once a veteran has been awarded service connection for a disease or disorder, VA will assign the veteran an appropriate disability rating after referring to the schedule of ratings for reductions in earning capacity for the specific injury or disability. See 38 U.S.C. § 1155. The rating is based, as far as practicable, upon the average impairments of earning capacity, in civil occupations, resulting from such injuries. Id. The Secretary has promulgated regulations to implement assignment of an appropriate disability rating. See generally 38 C.F.R. Part. 4.
After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering. See, e.g., 38 C.F.R. § 4.126. Where there is a question as to which of two evaluations to apply, the Board will assign the higher rating if a veteran’s disability more closely resembles the criteria for the higher rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7; see also, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 440-41 (2002) (discussing PTSD rating issues).
The amount of VA compensation due to a claimant is determined by evaluation of the disability or disabilities resulting from diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1. “VA’s rating schedule is constructed for the purpose of establishing levels of disability for compensation purposes based upon ‘average impairment in earning capacity’ resulting from particular injuries or diseases.” Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011); Hensley v. Brown, 5 Vet. App. 155, 162 (1993) (quoting 38 U.S.C. § 1155); 38 C.F.R. § 4.1. VA regulations also caution that “it is not expected . . . that all cases will show all the findings specified in the [applicable disability code].” 38 C.F.R. § 4.21.
The Court has held that the symptoms listed in the disability codes are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2006). The Court concluded that “any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation.” Id. The Board is required to “consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment,” not just those listed in the regulation. Id. at 443.
Further, “functional loss due to pain” should be rated and evaluated separately because the Diagnostic Codes do not “contemplate the functional loss resulting from pain on undertaking motion.” DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); see also Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (describing the holding in DeLuca as “requir[ing] that the disabling effect of painful motion be considered when rating joint disabilities”). However, “pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). “Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'” Id. (quoting 38 C.F.R. § 4.40).
The Court “may not review the schedule of ratings for disabilities” adopted by the Secretary. 38 U.S.C. § 7252(b). “The [rating] schedule consists of both the ratings and the injuries for which the ratings are provided[, and] [t]he Secretary’s discretion over the schedule, including procedures followed and content selected, is insulated from judicial review with one recognized exception limited to constitutional challenges.” Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004). The Federal Circuit further noted that “review of the content of the rating schedule is indistinguishable from review of ‘what should be considered a disability.'” Id.; see also Byrd v. Nicholson, 19 Vet. App. 388, 392-94 (2005) (holding that the Court could not hear the appellant’s challenge that periodontal disease should constitute a disease for VA compensation purposes because it would require the Court to review the content of the rating schedule).
In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that VA should not limit a claim to only the disability identified by the claimant. The Court found in Clemons that although the appellant’s original claim “identifie[d] PTSD without more,” the “breadth of the claim” was not limited to PTSD but also included “anxiety disorder [not otherwise specified] and schizoid disorder, which ar[o]se from the same symptoms for which he was seeking benefits.” Clemons, 23 Vet. App. at 5. The Court held that “as a self-represented layperson at the time his claim was filed, the appellant neither had the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD.” Id. at 6. Rather than “limit[ing] its consideration of the claim based on the appellant’s belief that he suffered from PTSD” the Court held that the Board should also have inquired into the appellant’s “currently diagnosed mental conditions that are different from his lay hypothesis in his claim form.” Id. at 7. In determining the scope of the appellant’s claim, the Board has to analyze “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id.
Where a condition is rated by analogy, the Board has a heightened duty to provide a thorough statement of reasons or bases. Suttman v. Brown, 5 Vet. App. 127, 134 (1993).
Schedular Rating 100%-Total and Permanent
If any one of the Veteran’s disabilities qualifies for a 100 percent rating under the rating schedule, the total disability requirement for pension is satisfied. Under VA disability compensation only service-connected disabilities are considered for the total and permanent rating.
Compensation rates are established by Congress. The VA compensation system is based on the rated percentage of disability (“scheduler rating”) and not on the rank of the veteran at time of discharge. At present, a senior officer and a junior enlisted who are each rated as 30% disabled each will receive the same amount of compensation per month from VA.
At one time the amount of VA benefits payable for the same condition was different depending on whether the veteran served in a time of war or not. Under the current payment schedule, compensation benefits for both classes of veterans are the same. So veterans with the same percent rated disability today receive the same monetary compensation regardless of when they served. [link to 38 USC 1110 v. 1131]
38 U.S.C. section 1114 sets forth the compensation rates for all awards of disability compensation, whether based on a new claim or a claim retroactively granted on the basis of CUE in a prior VA decision. When the rates are set by Congress, they have a specific effective date and remain in effect until they are changed. Nothing in the statute provides for payment of a higher rate when the payments are retroactive, and the Court cannot find any intent for payment at the higher rate without a clear, explicit waiver of the Government’s sovereign immunity from the payment of interest. 38 U.S.C § 1114; see also Smith v. Principi, 281 F.3d 1384, 1387 (Fed. Cir. 2002) (“waiver of the no-interest rule must be express”). Further, the suggestion that section 1114 requires that an award of retroactive benefits must be calculated at the rate in effect at the time of payment was expressly rejected by the Federal Circuit in Sandstrom v. Principi, 358 F.3d 1376, 1380 (Fed. Cir. 2004).
Thus, a claimant is not entitled to receive an amount not authorized by Congress during a particular time frame.
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