VA Policy on Disability Evaluation

VA could have said, “No, we can figure that out. Our doctors are so smart; they know what the features of a personality disorder are, and they know what PTSD is, and they know how they’re different, so our doctors can tell how much is due to a personality disorder and how much is due to an acquired disorder.”

Nonsense. VA didn’t do that. VA said, “You’re right,” and they said, “We don’t do that. We do not deduct a degree of disability for a coexisting condition if we’re not able to distinguish the difference.” They said, “Our rules require us to grant the benefit of the doubt to the veteran so that all signs and symptoms will be attributed to the service-connected condition.”

People in the business don’t often take the time to actually read the Federal Register when VA proposes a rule change. This is important to understand and get some insight into why they’re making the change and what the thought process was. At that point, VA could have chosen to disagree with DAV and say, “No, we know how to apportion the disability.” But they did not do that. They said, “No, we give the benefit of the doubt to the veteran and attribute all signs and symptoms of mental illness to the service-connected disability.”

Understanding Court Precedent

I have encountered people throughout the system who never heard of this court precedent, never applied the eggshell skull rule, and even some people in the central office responsible for oversight for the compensation service who would argue with me about what I just said because they still believe they can apportion the disability.

Host: Now Bill, wouldn’t this kind of fall into the similar category as the reduction of benefits? Couldn’t some of these same rules apply?

Bill: It can happen, and I’ve seen it. If we are giving a veteran an exam and the result is we’re going to increase, no problem. But if we’re going to decrease, then the examination report must tell us how we know it is improved. When I say improved, I don’t mean just, “The elbow bends further today than it used to, so now it’s only 10% disabling instead of 20.” I mean that VA and the examiner must explain exactly how and why we can tell that there not only was there improvement but it is a material improvement, not just a little bit but a material degree.

Secondly, we have to show that this represents the degree of disability that is sustained. First, we have to show the improvement is material, then we have to show that the material improvement is sustained, meaning it’s not just a good day; it represents the chronic level of disability at this time. Now, after we’ve decided that there is improvement, that it’s material improvement, and that it’s sustained improvement, we have to show that it was achieved under the ordinary circumstances of daily life, including employment. In other words, the intent is we’re not going to reduce a veteran who, for the last two years since his last exam, has been at bed rest. That’s not how we evaluate disabilities. We evaluate, for example, the mailman delivering mail; we are to evaluate his knee at the end of the workday under the ordinary circumstances of daily life, including employment.

The System’s Weakness

That’s where the system most often breaks down. With VA’s electronic rating system, Veterans Benefits Management System (VBMS), the computer program has a calculator built into it. You choose a diagnostic code, put that disability in, and it will prompt you to enter the data into the program. For example, if the shoulder abducts halfway, 45 degrees, that’s one diagnostic code. But we have to show that’s sustained under the ordinary circumstances of daily living. We want to examine him after he’s been at work all day, maybe delivering furniture, which would have a huge impact. We have to make certain it’s not a result of rest and not just a temporary remission but represents the chronic level of disability.

Examiners aren’t prompted to do this. The DBQ doesn’t ask for it. Raiders, remember, they’ve got to get a lot of cases done every day and don’t take the time to conduct the analysis. They simply transpose the data from the DBQ into the computer and typically accept what the computer tells them the evaluation should be. That’s the weakest point. If we rebut those simplistic exams with more comprehensive evidence and a better medical explanation, we have a chance of reversing that proposed reduction.

Host: Yes, Bill. I hate to interrupt you, but you brought up an important point. You were referencing a mailman. If you want to get a true reading of his knees or evaluation of his knees, it should be done at the end of the day after he’s walked all day long, when he comes hobbling in.

Bill: Exactly right.

Host: What I’m getting at here, I have to go down for oxygen certification all the time, and they do that at rest. They don’t walk you across the floor. They’re not going to walk me because I can’t walk across the floor. They take your O2 saturation at rest.

Bill: Yes, those are very related circumstances. When I was representing veterans as a service officer, I would always have my veteran come in and visit me before the exam. I wanted to make sure that we do not give a distorted picture to the examiner. The examiner needs to know what that disability is like under the ordinary circumstances of daily life, meaning active. If you, for example, back to the knees, if you’re being scheduled for a VA knee exam and you sleep all night, get up in the morning, drive over to the medical facility, and sit in the waiting room for an hour or so, you are distorting that disability picture because you’ve limited your activities to the minimum amount of rest and sleep. The examiner needs to see what it’s really like. So, I tell a guy, “Mow the grass the day before you go. Let us see what it’s really like.”

Host: They want to evaluate you at your best possible condition instead of evaluating what it actually is after you’ve been out working or putting stress on all your joints.

Bill: Exactly. If you’ve seen DBQs on joints, there are a couple of measurements: initial range of motions, range of motion after repetitive motion tests, and then what it’s like on use and during flare-ups. The breakdown in the system is that examiners typically say, “I don’t know what it’s like during a flare-up because he’s not having one,” or “I don’t know what it’s like on use because it’s not on use at the moment,” so they don’t put in a value different from the initial range of motion.

Host: I believe we have Dr. Bash here now. Dr. Bash, are you here?

Bill: No, I don’t guess he’s here yet.

Importance of Proper Evaluation

Bill: I wanted to point out that DeLuca said VA has to comply with its own regulations. That was in 1995. I had never seen any training modules on this concept until 2010 or 2015. VA started bending joints three times and seeing how far they move after loosening up, but this doesn’t accurately represent a condition’s chronic state. Mitchell v. Shinseki came out in 2011 and required quantifying additional loss in degrees. Kuppenheimer v. McDonald in 2016 required joints to be tested in weight-bearing conditions.

Severance and Reduction

Severance is far more difficult and should be very rare, but I’ve seen it done incorrectly. The courts have had a whole series of decisions on this topic. If it is severed without observance of applicable law, it is void ab initio and must be reinstated back to the date it was severed. VA cannot sever service connection without finding that the grant of service connection was clear and unmistakable error. The burden is on the veteran to demonstrate that the grant was wrong based on the evidence and rules at the time of the prior decision.

Medical evidence is substantially an opinion, and it is essential in these cases.