38 C.F.R. pt. 4 (§§ 4.1 – 4.150) contains the VA’s Schedule for Rating Disabilities. This is the law that the VA applies the facts of a specific Veteran’s claim for disability compensation to in order to rate that Veterans condition. For example, let us say a Veteran submits a claim for a mental health condition. After assisting the Veteran with developing his or her claim, the VA determines that this condition is service-connected and that the Veteran suffers from:
- mild memory loss,
- chronic sleep impairment, and
- occupational and social impairment with occasional decrease in work efficiency due to anxiety.
Based on these symptoms, the VA may assign a rating of thirty percent (30%). This is because 38 C.F.R. § 4.130 (Mental Disorders) list these symptoms as justifying such a rating. A problem arises when a Veteran files for a condition that is not listed in the rating schedule.
Suppose a Veteran of the Persian Gulf Wars filed for a number of claims, including:
- pain throughout his body, including both his left and right shoulders, elbows, wrists, hands, hips, knees, lower legs, and ankles, as well as his ribs and upper and lower back;
- chronic and productive cough; and
- testicular varicocele.
Because none of these conditions are specifically mentioned in the ratings schedule, rating must be done by analogy. Under rating by analogy, the VA must find a closely related condition by considering (1) the functions affected by the conditions, (2) the location of the conditions, and (3) whether the symptoms are similar. These are referred to as the Lendenmann Elements. To find the best analogous rating, a Veteran or Veteran’s representative should look through the entirety of the VA’s Schedule for Rating Disabilities, and not just at the conditions which superficially seem the closest to the Veteran’s symptoms. Sometimes the best analogous conditions may be hidden where you would least expect them to be.
In Stankevich v. Nicholson, the Veteran filed a claim for the physical ailments listed above (pain throughout his body, including both his left and right shoulders, elbows, wrists, etc.) and the VA denied him compensation, stating “the only reasonably analogous code would appear to be Diagnostic Code 5003 pertaining to arthritis.” Because the VA chose DC 5003, in order to receive compensation the Veteran had to show the presence of arthritis by x-rays or present significant limitation of motion. Since the Veteran had neither, he was denied compensation. The Court set aside the VA’s decision. The Court held the VA didn’t provide an adequate statement of reasons or bases for its selection, stating:
We note that fibromyalgia, which involves ‘widespread musculoskeletal pain and tender points’ and is specifically named as a condition for which presumptive service connection may be granted, appears to be at least as equally analogous as arthritis to Mr. Stankevich’s condition.
The Court found that Fibromyalgia (DC 5025) was just as analogous as DC 5003. Incidentally, DC 5025 does not have the same disqualifying requirements that DC 5003 have.
Veterans and their representatives should always find an analogous DC that awards them the highest rating for their set of symptoms, as long as it meets the three Lendenmann elements detailed above: function, location, and symptoms. For the chronic cough claim, the VA may want to assign one of the codes from DC 6510 to DC 6514, which require “One or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting” for a rating of 10%. A careful and thorough Veteran or Veteran’s representative will have looked throughout all of § 4.97 and came upon codes DC 6834 through DC 6839, which only require “minimal symptoms such as occasional minor hemoptysis or productive cough” to warrant a rating of 30%.
The Veteran’s testicular claim is more difficult because DC 7525, for epididymitis, really is the closest regarding the Lendenmann Elements within the genitourinary system. The problem is that epididymitis involves inflammations and infections of the epididymis tubes and is rated as a urinary tract infection, which requires “Long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management” for a rating of 10%, and “Recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management” for a rating of 30%. Because varicoceles are usually due to faulty valve mechanics and not infections, it is unlikely that a Veteran suffering from a varicocele will ever have the necessary symptoms for service-connection under DC 7525. What a Veteran or representative should do is look under 38 C.F.R. § 4.104, the cardiovascular system, because it deals with diseases of the arteries and veins – which is what a varicocele is. DC 7120, Varicose Veins, lists the appropriate symptoms and a much more accessible rating schedule.
It is important to note that when two or more diagnostic codes are similarly appropriate under the Lendenmann Elements, the VA is required to assign the code that yields the highest evaluation. When rating by analogy, the VA cannot require the Veteran to meet all objective evidence for an analogous disability. This would negate the whole point of the analogy. The Court addressed this in Stankevich, discussed above. The Court held that:
The function affected, anatomical localization or symptomatology of an…illness cannot be analogous if the [VA] applies that rating criteria to require objective evidence of a diagnosed disability (here, x-ray evidence of arthritis).
This is because the Veteran should not have to prove arthritis when he or she does not actually have arthritis; he or she only has a condition analogous to arthritis.
When a Veteran files a claim seeking service-connection for a disability and receives a denial or a low rating, the Veteran or Veteran’s representative should look through the VA’s Schedule for Rating Disabilities to ensure that the VA utilized the proper code, taking into consideration the three Lendenmann Elements and the requirement to assign the higher of two ratings.
Tod is a service-connected Veteran of the United States Army and a partner at the law firm of Grimes Teich Anderson, LLP, in charge of the firm’s Veterans Law section. His firm has offices in North and South Carolina, and his Veterans practice is national.
 Lendenmann v. Principi, 3 Vet. App. 345, 350-51 (1992).
 19 Vet. App. 470 (2006).
 Id. at 471.
 38 C.F.R. § 4.71a (DC 5003).
 38 C.F.R. § 4.97 (DC 6510-6514).
 38 C.F.R. § 4.97 (DC 6834-6839).
 38 C.F.R. § 4115b.
 38 C.F.R. § 4115a.
 Powell v. West, 13 Vet. App. 31, 34 (1999).
 Stankevich, 19 Vet. App. at 472.