Requirement #1: A Current Disability
Veterans must have a current disability to get a rating.
- A veteran who broke an ankle while on active duty and the ankle is fully healed is not eligible for compensation.
- Exposure to Agent Orange, burn pits, or other environmental hazards, alone, does not entitle a veteran to a rating. Disabling conditions caused by the exposure do.
The VA is required to help veterans develop the medical evidence veterans need to prove their disability. Although helpful for a veteran to supply as much evidence as possible, veterans are not required to submit with their claim all of the evidence necessary to support that claim. The VA has a statutory “duty to assist” the veteran in developing this medical evidence. Read more about what evidence a veteran must submit to trigger the VA’s duty here.
PRO TIP: The VA’s duty stops at arranging a medical exam and gathering records. VA is not required to produce favorable evidence. A VA exam can (and often does) come back negative on any disability. In this situation, a veteran can (and must if they want to succeed in their claim) explore getting his/her own medical opinion.
The disability must exist at the time the veteran submitted the claim or at some time during the claim process. A claim, start to finish, can take years, but veterans are not penalized if their condition improves while they wait for a decision. It may mean the VA will rate the veteran only for that period of time the veteran suffered from the disability. Bottom line, though, is that as long as the disability existed sometime while the claim was pending, the veteran is eligible for a rating.
PRO TIP: If the VA denied your claim because your condition improved, but there is evidence the veteran had a disability at some point during the pendency of the claim, appeal the decision and cite to McClain v. Nicholson, 21 Vet App. 319 (2007).
The veteran does not have to write down the precise disability when filing a claim. In other words, you don’t have to claim “incomplete paralysis due to sciatic nerve radiculopathy” to trigger a valid claim. But be as descriptive as possible. For example, “numbness in left leg.” Do not just put “leg” or “head.” Mental disorders can be particularly difficult to describe when filing a claim. The Court of Veterans Appeals recognized a potential unfairness if the VA could deny a veteran’s claim for PTSD where the VA instead diagnosed the veteran with depression. Therefore a special rule applies to claims for mental disorders, and the VA is supposed to consider a claim for one mental disorder to be a claim for any mental disability where the symptoms and the veteran’s description reasonably match the claimed disability.
PRO TIP: In every claim for a mental disorder describe it broadly, like “any and all mental conditions, including but not limited to_____________” and fill in the blank with the disorder the veteran thinks he/she has.
What disabilities are rated?
The list of disabilities rated by the VA can be found here. An explanation of how to read the rating tables is here. If a veteran has a condition not listed in the tables, the VA will analogize it to the closest condition on the list.
How to establish the diagnosis
Generally, medical evidence, as opposed to lay evidence, is necessary to support a veteran’s claim of a disability. You can read in depth about the differences between the two types of evidence here. Generally one can think of lay evidence as anything that doesn’t require a medical degree to diagnose.
A veteran’s lay evidence is still extremely valuable and necessary in supporting the claim. Although a veteran is not qualified to diagnose a medical condition, the veteran and his/her family, friends, and battle buddies are in the best position to describe the symptoms to the VA. There are also some cases where a lay person is considered competent to diagnose a medical condition. For instance, some medical conditions are pretty obvious. If you break your leg on a jump and have a compound fracture (where the bone exits the skin), you don’t have to be a doctor to diagnose the broken leg. Also, be very careful that the VA doesn’t use this rule to ignore medical diagnoses from a private physician where the veteran serves only as the messenger from one doctor to another. A veteran relaying a message is not a veteran making a diagnosis!
And, if a veteran or a veteran’s family member also happens to be a medical professional, the VA must consider their opinion just like any other medical opinion. If the VA’s done an exam and denied or improperly rated the disability, the veteran will more than likely have to arrange for their own private medical exam to be successful on the claim. There are times when a VA exam is deficient and a veteran can force a “do over.” We run across this a lot in exams for musculoskeletal disorders.
In addition to securing your own exam, the veteran should also work to discredit the exam performed by the VA. The VA will presume that the examiner who conducted the VA exam was competent to do so, but the veteran can rebut this presumption. This rebuttal must be done while the claim is still pending. The end goal here is to show that the veteran’s private examiner was better qualified than the VA’s examiner.
PRO TIP: Submit a FOIA request to the VA for documents related to the examiner’s medical training and expertise. Also use publicly available resources (e.g. Linkedin) to gather information of the examiner’s history and training.
Final Thoughts
- Veteran must have the disabling condition at some time while the claim is pending
- Will more than likely need a medical diagnosis to prove the condition BUT
- The veteran’s lay evidence describing the symptoms is still very important
Need Help With A Claim?
If VA denied your claim because of a lack of a current disability, Valor Firm can obtain your claim file and perform a free evaluation of your claim. Please call us at (504) 218-2510 or fill out the form on our contact page.