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VA Rating: What if you cannot work, but your Rating isn't 100%?

By Jessica M. Friedman of Friedman Law Firm, P.C.

Wednesday, December 2, 2020

Many veterans are rated less than 100% even they cannot work. In fact, you may be surprise to learn that maximum ratings for some conditions are less than 100%, such as Migraine Headaches (maximum 50%) and Fibromyalgia (maximum 40%).

A 50% rating for Migraine Headaches means “very frequent completely prostrating and prolonged attacks productive of severe economic inadapability.” Does that sound like a person can work? NO! But, the rating still is only 50%.

Likewise, Fibromyalgia at 40% (the highest rating available) is described as: "widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowl symptoms, depression, anxiety or Raynaud’s-like symptoms that are constant or nearly so, and refractory to therapy." Again, this doesn't sound like a person who could work! But, the highest rating is only 40%.

For other ratings, like COPD, the maximum rating available  may be 100%, but a lower rating might be enough to show that a person cannot work. For example, heart disease at 60% and breathing disorders such as COPD at 60%, often result in a conclusion that a veteran cannot work when considered in light of education and work history.

Unfortunately, unless you know how best to present your claim, the VA might not tell you what to do -- even though the VA has Duty to Assist which requires them to help. Also, the law is clear that the VA is supposed to evaluate whether you meet the requirements for Individual Unemployability when the record itself raises the question. In our experience, the VA often skips this step until we point it out.

So, if your medical records show that you are not working, or appear unable to work, the VA should evaluate you for IU. But, they rarely do so. In fact, despite it not being required by law, the VA usually requires a veteran to submit a Form 21-8940 to specifically claim IU. And, they may deny your IU claim even if you raise it, if you do not complete the form. Sometimes they tell you to submit the form, and sometimes they do not.

It's not fair, and we do not believe the VA should handle IU claims this way. But, because of this barrier, claiming IU requires thinking through how best to present a claim.

If you have questions about being unable to work, even though your rating is less than 100%, feel free to contact us. We will answer your questions so that you will have a better understanding of what you are up against. Call us at 205-879-3033 or email Lifehealth@FriedmanFirmPC.com.

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