Veterans are often asking our team if they only qualify for one disability or if they can qualify for multiple separate disabilities for their VA disability rating. To better explain the circumstances around these cases, we will use an example: Let’s say that you hurt your left hip in service. This damage to your hip meant that you tend to favor your right hip. After years of favoring your right hip, now that hip is having problems too. So, If the VA concedes that both your hip conditions are service related, how many “disabilities” do you have for VA purposes? These situations are common among Veterans seeking VA compensation, and each case is unique.
Like most questions in VA disability law, there is no clear answer. The VA is supposed to grant separate ratings where “distinct disabling conditions” could be established. However, the VA’s rule against pyramiding keeps them from granting separate ratings when the disabilities are duplicative or involve overlapping symptoms. Basically, the VA does not want to compensate you for two, three, or four disabilities when in their opinion you only have one disability that is causing the others.
A safe bet from the practitioner’s perspective is to argue that the Veteran is entitled to separate ratings when VA regulations have different diagnostics codes for the same body part. For instance, using your left hip from our example: you may have limitation of motion in your hip on extension (moving it backwards), flexion (moving it forwards), or on abduction/adduction (moving it to the side or inwards). Technically speaking, you could be rated three times in this example. You could also be granted additional ratings if your hip and leg joint is unstable; or if you broke your leg bone at the hip and it didn’t heal properly (malunion), causing alignment and rotation problems. Furthermore, if you have symptoms of malunion at the hip, even if you didn’t break your leg, you can argue that you are entitled to the rating regardless, as your symptoms match the diagnostic code. You can also argue that pain itself is a separate disability following this year’s decision in Saunders v. Wilkie, Case No. 17-1466 (Fed. Cir. 2018) that we mentioned in a previous blog post. Lastly, you could qualify for a bilateral rating, in addition to your hip ratings, as you are service connected for both hips.
Yes, it can be to your advantage to ensure that a condition is counted as one disability by the VA. The most common scenario is if you want eligibility for total disability based on individual unemployability (TDIU). TDIU bumps your VA disability percentage up to 100% if your disabilities keep you from maintaining substantially gainful employment. In most instances, to qualify for TDIU, you need to be rated 60% for one disability, or have multiple disabilities in which you are rated 40% for one disability with a 70% total rating. In the example above, you may not actually have any single disability rated at 40%, but for TDIU purposes, the VA can consider disabilities of one or both of the lower extremities to be “one disability.” So, if all your ratings for both hips add up to the right number (60%, or 40% plus other conditions to reach 70%), they count as “one disability” for VA rating purposes. This is the rare case where the VA lets Veterans have their cake and eat it too.
A good way to determine your best course of action with respect to one disability vs. multiple disabilities is to reach out to a VA disability appeals lawyer or non-attorney advocate. The VA process for determining overall disability percentage can be convoluted, and it can be helpful to have an experienced advocate to help you navigate the VA claims and appeals process.
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