Mental health conditions and what gets rated with them

Any rating counts — including 0%

You will see this topic written as if it starts at 70%. It does not.

The regulation is 38 CFR 3.310 — secondary service connection. It says a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. The word it uses is "service-connected," not "compensable." It sets no minimum percentage. If your mental health condition is service connected at 0%, 10%, 30% or 50%, you can file a secondary claim. Believing there is a 70% threshold is what stops eligible veterans from ever filing.

• Secondary service connection — VA compensating a second condition because your already service-connected condition caused it or made it worse.

Read 38 CFR 3.310 yourself

Three things, and the third is the one that fails

1. A current diagnosed disability — diagnosed now, by a provider.
2. An existing service-connected disability — your mental health condition.
3. A medical link between them. This is called a nexus: a provider's written opinion saying the first condition was caused or aggravated by the second, and why.

File on VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. VA's own page on the evidence needed.

Start the clock before you have the evidence

Your effective date is what back pay is built on.

You do not have to wait until your records are perfect to protect your date. Submit an intent to file — VA Form 21-0966 — and it preserves an earlier effective date while you gather the nexus opinion and the treatment records. If you start the 21-526EZ online instead, VA sets the date automatically the moment you start the form.

Every month you spend collecting evidence without one of those on file is a month of retroactive pay you will not get back.

You do not have to prove it caused it

Aggravation counts, and most people have never heard of it.

38 CFR 3.310(b) covers aggravation — any increase in severity of a condition that is not service connected, where that increase is proximately due to a service-connected disability. VA sets a baseline level of severity and compensates the worsening above that baseline. If you already had high blood pressure or reflux and your service-connected mental health condition made it worse, that is a claim.

Insomnia, panic attacks, social anxiety

These are already in the rating you have.

Insomnia, panic attacks and social anxiety are ordinarily part of the same mental-health disability picture you are already rated for. Chronic sleep impairment and panic attacks are named symptoms in the General Rating Formula for Mental Disorders at 38 CFR 4.130. And 38 CFR 4.14 bars pyramiding — "the evaluation of the same disability under various diagnoses is to be avoided." Do not expect a second, separate percentage stacked on top of your mental health rating for them.

Obesity — not a dead end

The flat "you cannot claim it" answer costs veterans real claims.

Obesity by itself is not a disease or injury, cannot be service connected directly, and is not a "disability" under 38 CFR 3.310. That is VA's binding General Counsel opinion VAOPGCPREC 1-2017. Two routes remain, and both are in that same opinion.

1. Intermediate step. Obesity may be an intermediate step between your service-connected mental health condition and a separate diagnosed disability under 38 CFR 3.310(a). Ask the examiner to address every link in the chain: the mental health condition or the medication treating it, then the weight gain, then the diagnosed condition — sleep apnea (DC 6847), hypertension, or type 2 diabetes. A medical opinion that traces each link is what wins these.
2. Extra-schedular. Where obesity resulting from a service-connected disease or injury produces impairment beyond what the rating schedule contemplates, VA may consider an extra-schedular rating under 38 CFR 3.321(b) — an exceptional or unusual disability picture with marked interference with employment or frequent hospitalization, referred to the Director of Compensation Service. Ask for 3.321(b) consideration in writing. VA will not volunteer it.

Read VAOPGCPREC 1-2017

Alcohol and substance use

This can be service connected only as secondary — never directly. 38 U.S.C. 1110 says no compensation shall be paid where the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs, and 38 CFR 3.301(d) provides that such a disease is not deemed incurred in line of duty.

The exception is real: where the abuse is secondary to, or a symptom of, an already service-connected disability — self-medicating PTSD or anxiety symptoms — it can be service connected through 38 CFR 3.310. That is the holding of Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), which is controlling law. The medical opinion has to say it in those terms.

TDIU — paid at the 100% rate

Nobody ever told me about this one either.

If your service-connected mental health condition keeps you from holding substantially gainful employment, you may be entitled to Total Disability based on Individual Unemployability. It pays at the 100 percent rate without a 100 percent rating.

The schedular threshold in 38 CFR 4.16(a): one service-connected disability rated 60 percent or more, or two or more disabilities with at least one at 40 percent or more and a combined rating of 70 percent or more. A 70 percent mental health rating meets the single-disability threshold by itself — no secondary conditions needed. VA may also consider entitlement at lower ratings in exceptional cases such as frequent hospitalization.

Ask for SMC-K by name

Erectile dysfunction is very often rated 0 percent.

Loss of use of a creative organ pays Special Monthly Compensation at the (k) rate — 38 U.S.C. 1114(k) and 38 CFR 3.350(a)(1). It is a flat monthly amount added on top of your basic compensation, and it is payable at any rating from 0 to 100 percent.

The SMC-K amount changes with the cost-of-living adjustment every December 1. I am not printing a figure that is about to reset — look up the current special monthly compensation rate table on VA.gov, or have your representative pull it.

Three routes, and a one-year trap

• Higher-Level Review — VA Form 20-0996. Within one year of the date VA mailed the decision (38 CFR 3.2500(a)(1)).
• Board Appeal — VA Form 10182. Same one-year deadline.
• Supplemental Claim — VA Form 20-0995. No filing deadline. This is the right vehicle when the missing piece was a nexus opinion you can now go get.

VA's decision review options · Supplemental Claim

Nobody has to take a cut of your back pay

An accredited representative of a recognized Veterans Service Organization cannot charge you a fee. 38 CFR 14.636 permits only accredited agents and attorneys to receive fees, and bars recognized organizations and their accredited representatives from charging. Their help is free.

An accredited attorney or claims agent may charge, but only after VA's agency of original jurisdiction has issued an initial decision on the claim. A fee not exceeding 20 percent of past-due benefits awarded is presumed reasonable where the representation continued through the date of the decision awarding benefits.

Find an accredited representative

The short version