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How your disability is rated

Q: I have been injured and am waiting for my military service to give me a rating. What is the significance of the military rating? Is it the same as I will receive from the Department of Veterans Affairs?

A: Before I answer your specific questions, I want to address briefly the procedures involved in reaching the military rating.

Once a medical evaluation board (MEB) determines that a service member does not meet retention standards, the case is forwarded to a Physical Evaluation Board (PEB).

The PEB initially adjudicates the case informally. If the service member does not concur with the PEB’s informal findings, he may request a formal administration hearing before the same PEB.

If the member does not concur with the formal board results, he may file a written appeal. If the PEB reaffirms or modifies its decision, it is required to forward the entire file to the Physical Disability Agency (PDA) in Washington, which will make the final determination of the military rating.

The military rating that you receive as a result of this process will not necessarily be the same as the rating you will receive from the Department of Veterans Affairs. Both the military and VA ratings are based on the Veterans Administration Schedule for Rating Disabilities (VASRD), which provides a disability rating for each of a large number of physical impairments and diseases, by diagnostic code. In some cases, the diagnostic code contains a mandatory minimum rating and/or a rating ceiling.

But not all the general policy provisions in the VASRD apply to the military. That’s one reason the military rating can differ from the VA rating.

There are also differences in how the two ratings are computed and what they mean. The military rates only service-connected physical impairments that render a service member unfit for duty — that is, conditions that terminate the member’s military career.

A finding of unfitness means that the member cannot perform the duties of his primary military occupational specialty at a minimum level of competence, given his rank and current duty position. By contrast, the VA rates any and all service-connected conditions.

In addition, the military rates an unfitting condition for its present level or severity — it does not take into account any possible future progression of the condition. The VA, on the other hand, does rate for future progression — in other words, the prognosis for the illness or injury.

The VA also takes into account the adverse impact of the disability on the veteran’s employability in the private sector. Obviously, the military is not concerned with civilian employability.

The military rating that you are assigned determines the benefits you will receive as a result of your separation from service. If the rating is less than 30 percent, the result is separation with a lump-sum severance payment.

However, if your military disability rating is 30 percent or more, you are eligible for permanent disability retirement.

In that case, you would draw lifetime compensation from the government, computed using a combination of disability rating, retired base pay and/or years of service. By contrast, VA compensation is a flat amount based on the percentage disability rating.

Ratings for each disabling condition come in increments of 10. The PEB may recommend a zero percent rating for a particular condition, even if that isn’t within the range specified in the VASRD for that diagnostic code.

However, a zero percent rating doesn’t mean no disability was found. Rather, it is a minimum rating and carries the same military benefits, including severance pay, as a 10 percent or 20 percent rating. It also means that additional VA benefits may become available in the future if the condition deteriorates.

At the other end of the spectrum, the military may not exceed the rating ceiling for a specific diagnostic code under the VASRD. However, the VA can award a 100 percent disability rating for the same condition if it finds that the severity of the condition rises to the level that the veteran is incapable of being trained for any type of gainful civilian-sector employment.

The military rating is a one-time process. Once this process is concluded, the military rating becomes permanent and will not change in the future. In contrast, the VA rating may fluctuate over time, depending on the progress of the disabling condition.

Several bills are pending in Congress that would change this entire process for the benefit of all of our wounded warriors. Let’s hope some of those favorable bills pass and become laws.

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Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard currently deployed to the Middle East in support of Operation Bright Star. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytiumes.com.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.