Analogous Ratings, When There Is No Code for a Condition

It gets rated under somebody else's criteria. There is a regulation for exactly this situation, and it comes up often enough that the numbering system reserves a slot for the result.

38 CFR 4.20 is the whole rule and it runs to three sentences. The first: 'When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.'

Nothing about that sentence is unusual in a rating decision. The schedule was built around body systems and the impairments they produce, and it names a finite set of conditions. Medicine names far more than that, and keeps naming more. A condition missing from the schedule usually means the schedule has an entry for something that behaves like it, which is the situation 4.20 was written for.

Three things, and 4.20 joins them with 'not only ... but ... and' rather than with 'or.' The functions affected. The anatomical localization. The symptomatology. All of them closely analogous, not one of them close enough.

Function is doing most of the work. 38 CFR 4.1 defines the percentages as average impairment in earning capacity, so a criteria set is a description of how much a body system has stopped doing. Two conditions with different names and the same functional consequence are analogous in the sense the regulation means. Two conditions that sound similar and impair different things are not.

The comparison lands on a specific criteria set, not on a vague resemblance. Diagnostic code 6602, asthma, grades on measured pulmonary function values, attack frequency and the kind of medication required. Anything rated under 6602 by analogy is going to be measured against those particular findings, in those units. Picking the code decides what evidence will matter.

The regulation elsewhere uses a looser version of the same test, and the difference in wording is worth noticing. 38 CFR 3.317(a)(5) directs that a qualifying Gulf War chronic disability 'shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.' Similar, and 'or' between the three. 4.20 asks for more than that.

Two four-digit numbers with a hyphen between them, and the second half is the one that decided the percentage.

38 CFR 4.27 sets the convention out step by step. 'When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions.' The regulation gives its reason in the next sentence: 'This procedure will facilitate a close check of new and unlisted conditions, rated by analogy.'

So a code ending in 99 is a statement. It says the condition has no listing of its own, and the digits in front of the 99 say which body system it was filed under. The code after the hyphen is the entry whose criteria were actually applied. Left of the hyphen, what the condition is. Right of it, what it was measured with.

4.27 uses the hyphen for a second and different purpose as well, for a disease rated on the residuals it left behind. The pillar covers both uses side by side, including the regulation's own worked example. A hyphenated code on a rating sheet is not always an analogous rating, and the 99 is what tells the two apart.

One more line from 4.27 governs what the sheet is allowed to say about the condition itself: 'the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature.' The code is a filing decision. The diagnosis stays the diagnosis a clinician wrote.

Two of its three sentences are limits, which is an unusual proportion for a permissive rule and worth reading in full.

'Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.'

The bar on doubtful diagnosis is the one worth reading twice. A condition still under investigation, or named in a record without the clinical findings underneath it, is not in a position to be rated by analogy, because there is nothing settled to draw the analogy from. Analogy is a step taken after a diagnosis, not a way around needing one.

The other limit worth stating plainly is that 4.20 is permissive about the method and silent about the result. It says it is permissible to rate under a closely related condition. It does not say which one, and it promises nothing about the level that follows.

No, and the regulation says so directly. 38 CFR 4.21: 'In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.'

This matters more in an analogous rating than anywhere else in the schedule, because the criteria were written for a different condition. A borrowed criteria set will contain findings the actual condition cannot produce. 4.21 says what it does expect in every instance: 'Findings sufficiently characteriztic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function.'

The rules for landing between levels are the ordinary ones. 38 CFR 4.7 assigns the higher of two evaluations where the disability picture more nearly approximates its criteria and the lower one otherwise, and 4.31 supplies a zero percent evaluation where the requirements for a compensable evaluation are not met. Nothing about an analogous rating changes those.

That the index reached its limit, which is a fact about the schedule rather than about the condition. Part 4 lists a fixed set of entries. The absence of one is the ordinary case that 4.20 and 4.27 exist to handle, and it is common enough that the regulation built a numbering convention around it.

What it does not mean: that the condition cannot be claimed, or that the search was done wrong. Service connection is decided under 38 CFR part 3, a different regulation, before part 4 is opened at all. Whether a condition has an entry in the schedule is a separate question from whether it is connected to service, and the second one is answered first.

A rating decision that used analogy will name the code it used. Reading that code against the text of the criteria it points to is how a decision becomes checkable. An accredited Veterans Service Organization representative will sit with a veteran and do that, and file a claim, at no charge. Accreditation is granted and published by VA, so it can be verified before anyone is handed a file.