"Criteria for a Higher Evaluation Are Not Met"
How the schedule works
Each lists percentage levels with defined findings. Where there is a question as to which of two evaluations applies, the higher is assigned if the disability picture more nearly approximates the criteria for it. 38 CFR § 4.7.
For musculoskeletal conditions, , weakness, fatigability, and incoordination must be considered — DeLuca v. Brown, 8 Vet. App. 202 (1995), and 38 CFR §§ 4.40, 4.45, 4.59 — and , 28 Vet. App. 158 (2016), requires joint testing in active and passive motion, weight-bearing and non-weight-bearing where applicable.
For mental health conditions, the rating turns on occupational and social impairment, not on the diagnosis or on counting symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); 38 CFR § 4.130.
Where the record usually falls short
- The examination captured a good day rather than the typical disability picture, with no flare-up description in the file.
- Range-of-motion measurements were recorded in only one testing posture.
- Sleep apnea claims lack the prescription and documented use of a breathing assistance device required by the 6847 criteria.
- Mental health evidence describes symptoms but not their effect on work and relationships.
- Separate, distinct manifestations were lumped into one evaluation rather than rated separately under Esteban v. Brown, 6 Vet. App. 259 (1994).
What to do next
A fits when the exam findings already in the file meet the higher criteria and the adjudicator applied the schedule incorrectly. A fits when a new examination or treatment record is needed to document the higher level. Either way, an also puts the effective-date rules at 38 CFR § 3.400(o) in play.
Frequently Asked Questions
References & sources
- 38 CFR § 3.303 — Principles relating to service connection — Code of Federal Regulations
- 38 CFR § 3.159 — VA's duty to assist — Code of Federal Regulations
- 38 CFR § 3.2500 — Review of decisions (AMA lanes) — Code of Federal Regulations
- Caluza v. Brown, 7 Vet. App. 498 (1995) — U.S. Court of Appeals for Veterans Claims · Sets out the three elements of service connection.
Useful Tools & Topics
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