Why Two Veterans With One Diagnosis Get Different Ratings

Two people with the same condition are two sets of records, and the records are rarely comparable documents. The criteria in 38 CFR part 4 are applied to what those documents say. Where the documents differ, the percentages differ.

The pillar on the rating criteria works through the mechanic in full. The compressed version: the diagnosis selects which criteria apply, and the record selects which level inside those criteria is met. Only the first of those two questions has anything to do with the name of the condition.

38 CFR 4.1 states what the schedule needs from a file in order to work at all. 'For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.' Accurate and fully descriptive is the standard. A great deal of ordinary medical documentation is neither, and not because anyone did anything wrong. Treatment notes are written to treat a person, not to be rated.

None of this is a statement about who advocated better. A percentage is read off documents.

It means a clinician wrote down what the condition does to the person, in enough detail that a criterion can be matched against it.

38 CFR 4.10 puts that job on a specific desk. The section imposes 'upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity.' Effects on ordinary activity, in addition to the pathology. A record can be medically first-rate and still not contain that.

Two knee files illustrate the distance. One reads, in its entirety, chronic knee pain, continue anti-inflammatory, follow up as needed. The other carries a measured flexion in degrees, a note that the person winced on passive motion, and a line about how long they can stand. Same knee, same diagnosis. The rating criteria are written in the vocabulary of the second document.

Vague language in a file supports the lower level, and it does that quietly rather than with a fight. 38 CFR 4.7 assigns the higher of two evaluations where the disability picture more nearly approximates the higher criteria, and then says what happens the rest of the time: 'Otherwise, the lower rating will be assigned.' Where a code writes no zero level of its own, 4.31 supplies one 'when the requirements for a compensable evaluation are not met.'

Because it is the evidence. The criteria are sentences, and matching a record to a sentence is a reading exercise performed on whatever words are in the file.

38 CFR 4.2 is unusually candid about how uneven those words are. After noting that different examiners at different times will not describe the same disability in the same language, it adds the sentence that explains most of the divergence between two similar files: 'Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described.' The regulation is describing clinical documentation as it actually exists, and then assigning somebody the job of reconciling it.

4.2 also sets a floor, and it is a duty rather than an option. '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.' A thin report is supposed to go back to be redone, not be rated around. Two comparable conditions can end up at different levels because one file got that treatment and the other did not.

The sibling page on how raters read criteria covers the return mechanism, the supplementary-report route at 4.70, and the separate gate for mental disorders at 4.125(a).

At function, which is the part of a condition least likely to be written down and the part the schedule is built on.

38 CFR 4.40 defines functional loss for the musculoskeletal system and then says what it needs from the examination: 'It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.' All these elements means excursion, strength, speed, coordination and endurance. An examination that measured range of motion and stopped has portrayed one of them.

38 CFR 4.45 lists what an inquiry into a joint is directed to, and reading the list is the fastest way to see how two files diverge. Less movement than normal. More movement than normal. Weakened movement, excess fatigability, incoordination, pain on movement with swelling, deformity or atrophy of disuse. 4.45 adds that 'instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.' Any one of those can be present in two people and recorded for only one of them.

38 CFR 4.59 states the intent behind all of it: 'The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.' The same section describes what recognition looks like on paper, asking that 'the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.' Noted and related to a joint. Pain that was felt and pain that was observed, timed and written down during a motion test are not the same evidentiary object, and only the second one is in the file.

That gap is a property of the examination, not of the veteran. It is also the single most common reason two people who describe their condition to each other in identical terms hold different percentages.

A period. This is the part that surprises people most, and it dissolves a lot of apparent unfairness between two files.

38 CFR 4.1 anticipates reratings over many years as laws, medical knowledge and a person's condition change, and asks that each disability be viewed in relation to its history. A rating decision is a finding about a body of evidence covering a stretch of time. A different stretch of time is a different finding.

Part 4 contains ratings that are openly temporary. 4.29 assigns a total 100 percent rating without regard to other provisions of the schedule when a service-connected disability has required hospital treatment for a period in excess of 21 days. 4.30 does the same for convalescence after certain surgery, running 1, 2 or 3 months from the first day of the month following discharge, and says plainly what comes next: 'Such total rating will be followed by appropriate schedular evaluations.' The 100 percent covers a defined stretch of weeks, and then the schedular evaluation resumes.

Re-evaluation is scheduled by regulation rather than by request. 38 CFR 3.327(b)(1) provides that following an initial VA examination, reexamination, if in order, will be scheduled 'within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.' The same section lists cases where no periodic reexamination is scheduled at all, including a disability established as static, findings that have persisted without material improvement for 5 years or more, and veterans over 55 years of age except under unusual circumstances.

There are brakes on movement in the other direction. 38 CFR 3.344(a) says that 'examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction,' and that ratings for diseases subject to temporary or episodic improvement will not be reduced on any one examination except where all the evidence clearly warrants the conclusion that sustained improvement has been demonstrated. 3.344(c) limits those protections to ratings that have continued at the same level for 5 years or more.

So two veterans who received the same diagnosis in the same year can hold different percentages simply because their files cover different periods and were last looked at on different dates.

Often, yes, and it is worth saying plainly. A diagnosis is a category. Inside one category, people are genuinely at different severities, and the schedule is built to produce different numbers when that is true. Migraine at diagnostic code 8100 spans four levels precisely because migraine does.

What the schedule cannot do is see a severity that nobody recorded. Those are two separate failure modes with the same appearance from outside: a lower percentage can mean a milder documented picture, or a thinner file, and the decision itself does not always distinguish them.

A rating decision names the criteria it applied and the evidence it considered. Reading it against the text of the code it cites is how the two get told apart. An accredited Veterans Service Organization representative will do exactly that with a veteran, and file a claim, at no charge. Accreditation is a status VA grants and publishes, so it can be checked before anyone is handed a file.