By regulation, the VA has a duty to grant “every benefit that can be supported in law.” However, the same regulation also states, in the same sentence, that the VA must also protect the interests of the Government. This competing interest necessitated the courts to continually refine the VA’s duty to maximize a Veteran’s benefits. As it stands so far, this duty is robust and even includes inferring claims for individual unemployability (“TDIU”) and special monthly compensation.
The VA must assume that the claimant is always seeking the maximum benefit allowed under law. This includes assigning the most favorable diagnostic code (“DC”) if more than one equally applies. In Vogan v. Shinseki, the Court held that the failure of the Board of Veterans Appeals (“BVA”) to consider any other DC under which the Veteran may be entitled to additional benefits establishes prejudice. This especially comes into play when the VA is rating by analogy. For example, when rating for an undiagnosed illness due to presumptive service connection for qualifying Persian Gulf War veterans, there will be no precise DC for the undiagnosed condition – this is because the rating tables only list conditions with diagnoses. The VA must look for a closely related injury or illness, preferably one that affects similar functions in similar body parts and have similar symptoms. To show that the VA is considering the highest rating within any given DC, in its decision the VA must discuss the next highest rating and why the current rating is the most appropriate.