How Raters Read Rating Criteria

Matching documented facts to specific words. A criterion is a sentence with conditions inside it, and the working question is whether the record establishes what that sentence describes. The wording is not decorative. Every clause in it is load-bearing.

38 CFR 4.2 assigns the job and describes the mess it is done in. Its opening sentence: 'Different examiners, at different times, will not describe the same disability in the same language.' The regulation expects the reports to disagree with each other, and then says what to do about it: 'It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.'

4.2 also fixes the vantage point. 'Each disability must be considered from the point of view of the veteran working or seeking work.' Not comfort, not how a person is doing at rest.

4.6 sets the standard for weighing what is in the file: 'Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board.' Probative value is the operative idea. Documents are not counted, they are weighed.

This distinction settles more percentages than any other feature of the schedule, and the schedule never flags it. Some levels are graded on how bad an episode is. Some on how often episodes happen. Some on both at once. A few replace adjectives entirely with a number a clinician measured.

Diagnostic code 8100, migraine, at 4.124a, is the clearest example of the both-at-once kind. The four levels read in full: 50 percent for 'very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability'; 30 percent for 'characteriztic prostrating attacks occurring on an average once a month over last several months'; 10 percent for 'characteriztic prostrating attacks averaging one in 2 months over last several months'; 0 percent for 'less frequent attacks'.

Every paying level in that table asks two things at once. A frequency, and the word 'prostrating.' A headache diary showing four headaches a week answers half of it. What the attacks did to the person having them is the other half, and no count of headaches supplies that on its own.

'Prostrating' is doing an enormous amount of work in four lines of text, and part 4 never defines it. Searched across the whole part, the word appears only in the 8100 entry. 'Characteriztic' is undefined in the same way. So is 'over last several months,' which sets a look-back window without naming how many months it is.

Some criteria dispense with the distinction and hand the whole thing to the examiner's adjectives. Diagnostic code 8103, convulsive tic, has three levels: severe at 30 percent, moderate at 10, mild at 0. Its note reads, in its entirety, 'Depending upon frequency, severity, muscle groups involved.' That is the whole criterion.

The General Rating Formula for Diseases and Injuries of the Spine at 4.71a replaces adjectives with degrees. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees is 10 percent. Greater than 30 degrees but not greater than 60 degrees is 20 percent. Thirty degrees or less is 40 percent. The formula applies 'with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected.'

The formula supplies its own baseline so the numbers mean the same thing everywhere. Note (2) sets normal forward flexion of the thoracolumbar spine at zero to 90 degrees and normal combined range of motion at 240 degrees, and says those figures are the maximum usable in the combined calculation. Note (4) directs rounding each measurement to the nearest five degrees. Note (3) lets an examiner declare a range normal for a particular individual because of age, body habitus, neurologic disease or other factors unrelated to the spine, provided the examiner explains it.

There is an instrument behind the number. 4.46 says the use of a goniometer in the measurement of limitation of motion 'is indispensable in examinations conducted within the Department of Veterans Affairs,' and asks for accurate measurement of muscle atrophy as well.

The knee shows how tight the increments get. Under diagnostic code 5260, flexion limited to 60 degrees is 0 percent, 45 degrees is 10, 30 degrees is 20, and 15 degrees is 30. Under 5261, extension limited to 5 degrees is 0 and extension limited to 10 degrees is 10. Five degrees on a worksheet is the entire distance between a paying level and a non-paying one, which is why 4.46 is fussy about measurement and why the rounding rule exists at all.

Occupational and social impairment. Read the first words of each level of the General Rating Formula for Mental Disorders at 4.130 and that phrase opens every one of them. The 30 percent level begins 'Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.' The 50 percent level begins 'Occupational and social impairment with reduced reliability and productivity.' The 70 percent level begins 'Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.'

The symptoms arrive after that, introduced by four words that change how everything following them reads: 'due to such symptoms as.' What follows is a set of examples of symptoms that typically produce that degree of impairment. Suicidal ideation is listed at 70 percent, panic attacks more than once a week at 50 percent, mild memory loss at 30 percent. They illustrate a level. They are not a set of boxes, and 4.21 already said no case is expected to show all the findings specified.

4.126(a) tells the rating agency what to consider and warns against one specific shortcut. It shall consider 'the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission,' and it 'shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.' A single good hour in an examination room is not the rating.

There are limits running the other way too. 4.126(b) says social impairment is considered but an evaluation shall not be assigned solely on that basis. 4.126(c) directs that neurologic deficits stemming from the same cause as a neurocognitive disorder, a head injury for example, be evaluated separately and combined. 4.126(d) says that where one disability has been diagnosed both as a physical condition and as a mental disorder, it is evaluated under the code representing the dominant, more disabling aspect.

4.130 writes its own 0 percent level, and the wording is worth reading closely: 'A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.'

Three sections of part 4 answer this and they are read together. They are the reason a measurement inside the normal range does not automatically end the question.

4.40 defines functional loss. Musculoskeletal disability is 'primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.' The loss 'may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.' And a sentence that carries a lot of weight: 'Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.'

4.45 lists what an inquiry into a joint is directed to: less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement together with swelling, deformity or atrophy of disuse. It adds that instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing are related considerations, and it names the major joints as the shoulder, elbow, wrist, hip, knee and ankle.

4.59 addresses painful motion directly. 'It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.' It also prescribes how the testing is done: 'The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.'

The condition attached to all of this is real and it is stated in 4.40 itself: pain has to be 'supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.' Pain described in a sentence and pain observed, measured and written down during a motion test are not the same evidentiary object, and 4.6 weighs them differently.

It goes back. 4.2 ends with the instruction: 'If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.' That is a duty, not an option.

4.70 covers the softer version, where the report exists but stops short. The rating agency 'may request a supplementary report from the examiner giving further details as to the limitations of the disabled person's ordinary activity imposed by the disease, injury, or residual condition, the prognosis for return to, or continuance of, useful work.'

Mental disorders have their own gate at 4.125(a). If the diagnosis does not conform to DSM-5 or is not supported by the findings on the examination report, 'the rating agency shall return the report to the examiner to substantiate the diagnosis.'

'Inadequate for evaluation purposes' is a finding about a document, and it is worth separating from what it sounds like. It says the report does not contain what the criteria require. It is not a finding about the condition or about the person.

4.7 is two sentences and both do work: 'Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.'

The test is approximation of the whole picture against the criteria for the higher level, and it operates only where a real question exists between the two. It does not turn a clearly lower picture into a higher one.

4.3 is a separate rule about a separate problem. 'When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.' Reasonable doubt describes evidence that is close to balanced, not evidence that is missing.

4.21 covers the incomplete picture. '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.' The thing it does require in every instance is 'coordination of rating with impairment of function.'

4.13 starts from the opposite presumption. 'The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted.' Continuity is the default.

Then it draws the line that matters: 'When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms.'

That sentence is about examiners rather than about veterans. One clinician writing 'moderate' where a previous clinician wrote 'mild,' with nothing underneath it having changed, is a difference in descriptive terms. 4.13 asks the rating agency to tell that apart from an actual change in the condition, in either direction.

4.13 also states what it does not block: 'This will not, of course, preclude the correction of erroneous ratings, nor will it preclude assignment of a rating in conformity with 4.7.'

For mental disorders the procedure is spelled out at 4.125(b). Where a diagnosis is changed, the rating agency determines whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition, and where the records do not make that clear, the report goes back to the examiner for a determination.

None of this is meant to be read alone by somebody in pain on a phone. An accredited Veterans Service Organization representative will read a decision against the criteria it cites, and file a claim, at no charge. Accreditation is granted and published by VA, so it can be checked first.