Preparing the way to a solid claim
Updated: May 24, 2022
I'll lay out how the VA judges disabilities, the Federal Regulation governing them, and how to manage your disability descriptions.
*Oranges are no longer recommended as spotting devices
Have you just joined the military? Are you two months away from retiring? Either way, it’s never too early or late to prepare for a strong VA disability claim. The secret is getting a diagnosis from your military care provider and documenting your symptoms that are ratable by the VA.
Sounds confusing right? You’ve been diagnosed with migraines so that’s getting the migraine percentage for sure. Wrong! Military doctors and x-rays diagnosed me with Scoliosis; that’s an automatic 20% according to the VA. Nope! I didn’t meet the criteria for that rating according to 38 CFR (Code of Federal Regulations) 4.71a. The same goes for the migraines. There are four different categories ranging from 0% to 50% disability and each has specific rating criteria. Do you get migraines once a month and have to lay down? That’s 30% disability. Do you get migraines and need to wear sun glasses inside, can’t drive and can’t tolerate loud noises? That’s 0%. You may have every qualification to get a 50% disability rating but get 0% because you didn’t understand how the VA was judging your condition.
Before I go further, I need to stress: do not lie or exaggerate your symptoms. The VA process involves an examination by a qualified doctor to verify your claims. Also, get the treatment and care you need for your injury or illness. The process I will lay out will only help you get your VA disability claim, it may not help you get the treatment you need. Be honest with your doctor and go as often as you need to get the help you deserve.
You need to understand your injuries and illnesses as the VA sees them. This is where 38 CFR comes in. You can find an excellent and searchable version at the Cornell Law School, or go the easy route and get a subscription to MilitaryDisabilityMadeEasy.com. Both are excellent resources and you will need one or the other to help you understand VA disability. Let’s say you moved into on-post housing and now you get rashes all over your legs, abdomen, and back. You would have expected your deployments to Iraq, Afghanistan or field training in less than optimal sanitary conditions to have caused it, but nope; it was base housing. You go in to be seen by your military care professional and tell them you have a rash and need some get-better-fast cream. The doctor asks you where the rash is located and you decide they only need to see your legs, you're not taking off your shirt; that’s way too uncomfortable. You leave the Doctor's office happy since you got enough medicine to treat your rash and get a diagnosis. The problem here is that the VA judges rashes or eczema by how much of the body they cover. You just went from a 30% to a 10% claim because you weren’t completely open with your doctor.
The other problem you can run into is not using the VA’s descriptions of your injury or illness. Migraines or headaches are rated by their frequency and if they are prostrating (you have to lay down). Nothing else matters for the rating. I had frequent headaches and migraines and needing to lay down was the least of my concerns. When I described my symptoms to my doctor, it was clear that I needed medication to function, but I left out the details that didn’t seem important to me. Those details were all that mattered to the VA. When I was two years from retirement, I started reading the CFR and realized that none of the symptoms I described were needed by the VA. Understanding my ratable symptoms helped my to describe my headaches more accurately during my annual physicals. Nothing about my care changed, but I was guaranteed to get the correct disability rating from the VA.
The best thing you can do for yourself is make a list of every ailment you have from dry eyes to cancer and find how they are rated in 38 CFR. This will help you define your symptoms, based on the VA guidelines, during your medical appointments. Remember to only claim the symptoms you have. I have had several injuries/ illnesses that fell short of meeting the exact 38 CFR specifications that still gained the full percentage. In these cases, the VA appointed medical professional that sees you for your claim will be your best advocate.