West & Dunn Attorney, Shana Dunn, explains the recent changes in the rating criteria made by the VA regarding musculoskeletal disabilities.The changes are a mixed bag for veterans. For example, following a hip or knee replacement a veteran would receive a 100 percent evaluation for 12 months under the old rating schedule(13 if you include the one month of temporary total evaluation allowed under 38 C.F.R. § 4.30). Under the updated rating schedule, the 100 percent evaluation is reduced after four months (5 including one month of temporary total evaluation allowed under 38 C.F.R. § 4.30). The updated rating schedule, however, allows for a temporary 100 percent evaluation for resurfacing of the hip or knee as well as for a replacement.
On a positive note, VA has taken steps to provide objective rating criteria for diagnostic codes that previously had very ambiguous criteria. For example, the proper evaluation for instability of the knee under the old rating criteria was dependent upon whether the veteran’s instability was slight, moderate, or severe. VA did not define slight, moderate, or severe, so individual raters were left to determine the definition themselves, resulting in ratings that were often inaccurate and disproportionate among veterans. The updated rating schedule does away with the undefined and subjective terminology in favor of evidence of use of an ambulatory device such as a cane, walker, or crutches, and/or surgical repair to determine the evaluation.
The versions of the rating schedule available online have not been updated as of February 10, 2021. The final rule from the federal register is available here: https://www.va.gov/ORPM/docs/20201130_AP88_SRD_MusculoskeletalSystem.pdf
If you are currently receiving an evaluation under an impacted diagnostic code, consultation with a knowledgeable representative is recommended. Please feel free to reach out to our Wisconsin veterans disability claims lawyers at West & Dunn, who have years of experience with VA Appeals by phone (608) 490-9449 or online.