VA vs. DOD VASRD interpretation differences

NAVYQestion1

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#1
This is a pretty specific question about the VA vs DOD interpretation of the VASRD. I was recently placed on the PDRL after my second TDRL eval. I’m a NAVY vet. I submitted a request for reconsideration, as I do not believe I was rated correctly. I wouldn’t be surprised if the reconsideration is denied and I’m sent to a FPEB. So I’m trying to get all my duck in a row.

Specifically, my question relates to pyramiding in relation to neurological conditions. I have my initial VA rating from when I was placed on the TDRL and my most recent rating was determined by the NAVY. I have Multiple Sclerosis and have lesions high in my spinal cord that cause a ton of different symptoms for the area below it. In my cause I have significant fatigue, sensation issues, pain, etc. that overlap as to effecting the same parts of the body. Initially, I thought that each part of the body could be rated iaw the VASRD as separate but then I was told that was pyramiding. But I did some more research and found a decision from the US Court for Appeals for Veterans Appeals (No. 10-0504)

https://veteranclaims.wordpress.com...c-f-r-4-25-murray-v-shinseki-24-vet-app-2011/

that goes into specific detail about how to rate iaw the VASRD if the symptomology is distinct and separate. I get all that and understand it. I get that this is a department of the VA decision. My question is this. Is this also binding or have you ever seen this argument applied to a DOD rating? I am specifically curious because SECNAVINST 1850.4E states in Part 8:

3801 Policy
a. Ratable Disabilities. Disabilities determined to be physically unfitting and
compensable under reference (c) shall be assigned a percentage rating.

b. Standard. Chapter 61 of reference (a) establishes the Department of Veterans
Affairs' (DVA) Veterans Administration Schedule for Rating Disabilities (VASRD ) as the standard for assigning percentage ratings. The percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries, and their residual conditions. However, not all the general policy provisions in Sections 4.1 - 4.31 of the VASRD are applicable to the military departments. Many of these policies were written primarily for DVA rating boards, and are intended to provide guidance under laws and policies applicable only to the DVA. This instruction replaces these sections of the VASRD. The remainder of the VASRD is applicable except those portions that pertain to DVA determinations of service connection, refer to internal DVA procedures or practices, or are otherwise specifically identified in enclosure (9) as being inapplicable.

Does this mean the DOD (ie NAVY in this case) can just pick and choose what they want to follow in the VASRD? It seems to me that this pretty much allows them to do whatever they want. Thanks everyone for your help!
 

maparker

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#2
What is the date of the SECNAVINST 1850.4e you are citing?

Mike
 

chaplaincharlie

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#3
The service departments are supposed to use the rating (established by the VA) for all diseases and/or injuries that are unfitting. What is not clear to me is how DoD avoids findings of unfitting on so many issues that when viewed as from a whole person concept are clearly unfitting. To clarify, I mean that condition A and condition B are both separately fitting, but a person with both A and B clearly is unfit, but neither condition is found as unfitting.
 

Jason Perry

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#5
The military departments have, for more than 50 years, been required to rate members using the "standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination."

So, in the first place, these Departmental changes/variances, etc., from the VASRD have always been illegal.

But, now, that does not matter because there were massive changes to the statutes as a result of the 2008 NDAA. The most important relevant language is here:

"(a) Utilization of VA schedule for rating disabilities in determinations of disability.
  • (1) In making a determination of disability of a member of the armed forces for purposes of this chapter [10 USCS §§ 1201 et seq.], the Secretary concerned--
    • (A) shall, to the extent feasible, utilize the schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of the schedule by the United States Court of Appeals for Veterans Claims; and
    • (B) except as provided in paragraph (2), may not deviate from the schedule or any such interpretation of the schedule.
  • (2) In making a determination described in paragraph (1), the Secretary concerned may utilize in lieu of the schedule described in that paragraph such criteria as the Secretary of Defense and the Secretary of Veterans Affairs may jointly prescribe for purposes of this subsection if the utilization of such criteria will result in a determination of a greater percentage of disability than would be otherwise determined through the utilization of the schedule."


10 U.S.C. § 1216a

So far, it is very clear that all of this applies to the entirety of the VASRD (which is found at 38 C.F.R. Chapter 1, Part 4).

There is some question about what other parts of 38 C.F.R. that reference or are referenced by the VASRD apply. I have seen a number of departmental references to others parts of 38 C.F.R. that are cited as applicable. It gets complicated in determining what a court would hold as additional sections outside of the VASRD being applicable (and more importantly, why- perhaps based on references, perhaps based on military regulations, or even some more exotic legal concepts that I won't go into now).

They cannot deviate from the VASRD.

Best of luck!
 

maparker

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#7
There have been numerous changes in law and policy since 2002, many of which target the requirement to rate unfitting conditions in strict compliance with the VASRD.

You need to request the PEB send you their policy updates. There are several.

Mike