By regulation, the VA has a duty to grant “every benefit that can be supported in law.”[1] However, the same regulation also states, in the same sentence, that the VA must also protect the interests of the Government.[2] This competing interest necessitated the courts to continually refine the VA’s duty to maximize a Veteran’s benefits. As it stands so far, this duty is robust and even includes inferring claims for individual unemployability (“TDIU”) and special monthly compensation.
The VA must assume that the claimant is always seeking the maximum benefit allowed under law.[3] This includes assigning the most favorable diagnostic code (“DC”) if more than one equally applies. In Vogan v. Shinseki, the Court held that the failure of the Board of Veterans Appeals (“BVA”) to consider any other DC under which the Veteran may be entitled to additional benefits establishes prejudice.[4] This especially comes into play when the VA is rating by analogy. For example, when rating for an undiagnosed illness due to presumptive service connection for qualifying Persian Gulf War veterans, there will be no precise DC for the undiagnosed condition – this is because the rating tables only list conditions with diagnoses. The VA must look for a closely related injury or illness, preferably one that affects similar functions in similar body parts and have similar symptoms.[5] To show that the VA is considering the highest rating within any given DC, in its decision the VA must discuss the next highest rating and why the current rating is the most appropriate.
This duty to maximize goes hand in hand with the VA’s duty to give the benefit of the doubt. The benefit of the doubt doctrine, codified in 38 C.F.R. §§ 3.102 and 4.3, states “[w]hen, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.”[6] This is an effective tool to include when arguing that a higher rating within the same DC should be applied, or when a more advantageous DC should be applied.
Although the VA has a special form for claiming TDIU (VA Form 21-8940), and the VA is allowed to “require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises,”[7] the courts have held that the VA must consider TDIU when the Veteran raises his inability to work but does not file a TDIU application form.[8] This is mostly due to the fact that TDIU is not a free-standing claim but rather “an attempt to obtain an appropriate rating for a disability or disabilities.”[9] The VA must consider a claim for TDIU whenever a Veteran raises in an original claim or a claim for increased benefits that he or she is unemployable.[10]
Two major limits on the VA’s ability to maximize benefits are the rule against pyramiding and the amputation rule. The rule against pyramiding, codified in 38 C.F.R. § 4.14, prevents the same manifestation of the same disability from being rated under different diagnoses. The courts have held that “the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity.”[11] This does not mean that multiple ratings cannot stem from the same injury or out of the same region of the body, it simply means that a Veteran cannot be rated for the same precise manifestation more than once. For example, a Veteran cannot be rated at a higher rating under PTSD for sleeplessness and get rated at an extra-schedular increase under Tinnitus for the same sleeplessness. This would result in the Veteran receiving compensation twice for the same sleeplessness. However, a Veteran can get rated separately for cosmetic disfigurement, pain, and muscle damage stemming from the same facial scar resulting from the same automobile accident.[12] In Esteban, the court held that the single accident resulting in a large facial scar had given the Veteran three distinct disabling conditions: cosmetic damage, pain, and limitation of function.[13] Another limit the VA has on maximizing benefits is the amputation rule, which states that “[t]he combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.”[14] The example given in 38 C.F.R. § 4.68 states that the combined ratings for all disabilities below a Veterans specific knee cannot exceed what the rating would be if that specific leg was amputated below that same knee. This is because if the VA decides a leg below the knee is only worth a certain rating in its entirety, any combination of disabilities of the leg below the knee cannot be worth more than the entire leg below the knee.
It is rare for the VA to automatically maximize a Veteran’s benefits as much as they are required to, so it is important for Veterans and their representatives to know these duties and hold the VA to them.
[1] 38 C.F.R. § 3.103(a).
[2] Id.
[3] AB v. Brown, 6 Vet. App. 35 (1993).
[4] Vogan v. Shinseki, 24 Vet. App. 159, 164 (2010).
[5] See Tropf v. Nicholson, 20 Vet. App. 317 (2006).
[6] 38 C.F.R. § 3.120 (emphasis added).
[7] Standard Claims and Appeals Forms, 79 Fed Reg. 186, 57660 (Sep. 25, 2014) (to be codified at 38 C.F.R. pt. 3, 19, and 20).
[8] Collier v. Derwinski, 2 Vet. App. 247, 251 (1992).
[9] Rice v. Shinseki, 22 Vet. App. 447 (2009).
[10] Collier, 2 Vet. App. at 251.
[11] Brady v. Brown, 4 Vet. App. 203, 206 (1993).
[12] Esteban v. Brown, 6 Vet. App. 259 (1994).
[13] Id. 6 Vet. App. at 262.
[14] 38 C.F.R. § 4.68.
Source: http://www.grimesandteich.com
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