Fenderson v. West — Initial ratings may require staged ratings, VA must provide adequate reasons or bases and proper appellate process

The case introduced staged ratings for initial ratings, allowing separate percentage levels for distinct periods when severity changed during the appeal window. In Fenderson v. West, the Court clarified the distinction between an appeal of an initial disability rating and a traditional increased-rating claim. The veteran appealed the initial ratings assigned after service connection was granted for migraine headaches and plantar fasciitis.

The Board treated the claims as ordinary increased-rating claims and relied primarily on the veteran’s current level of disability. The Court held that this was legally incorrect because appeals of initial ratings remain part of the original claim and require review of the disability throughout the entire period beginning with the effective date of service connection.

The Court formally recognized the concept of “staged ratings,” holding that separate ratings may be assigned for separate periods of time based on the facts found during the initial-rating period.

Applying that rule, the Court found substantial evidence that the veteran’s migraine headaches were more severe during earlier portions of the appeal period than later records reflected. The Board therefore erred by focusing primarily on the present level of disability rather than evaluating fluctuations over time.

The Court also held that the Board failed to adequately address functional loss and pain in evaluating the veteran’s plantar fasciitis. Although the Board referenced 38 C.F.R. §§ 4.40 and 4.45, it failed to meaningfully apply them to evidence showing activity-related pain and functional limitations.

Fenderson became the foundational case governing staged ratings in veterans law and remains critical in all appeals involving initial disability evaluations.

Appeals involving initial disability ratings are not traditional increased-rating claims. During an initial-rating appeal, VA may assign separate ratings for separate periods of time based on the facts found, commonly referred to as “staged ratings.”

• Initial-rating cases are not locked to a single percentage for the whole period.
• VA must analyze whether symptoms worsened or improved over time.

VA must evaluate the entire history of a disability during an initial-rating appeal and cannot focus solely on the veteran’s current level of impairment. Different ratings may be warranted for different time periods.

Introduced staged ratings for initial ratings, allowing separate percentage levels for distinct periods when severity changed during the appeal window.

Fenderson v. West fundamentally changed how VA evaluates appeals involving initial ratings after service connection is granted.

Before Fenderson, VA frequently treated initial-rating appeals the same as standard increased-rating claims and focused almost exclusively on the veteran’s current condition. The Court rejected that approach and held that initial-rating appeals require evaluation of the disability over the entire period beginning with the original effective date.

The decision formally established the concept of staged ratings, allowing VA to assign different evaluations for different time periods when the severity of a disability changes over time.

The case is critically important in:

• migraine claims,
• mental health claims,
• orthopedic conditions,
• fluctuating conditions,
• temporary worsening periods,
• post-surgical recovery periods,
• and long-pending appeals involving changing symptom severity.

Fenderson also reinforces that the Board must adequately analyze functional loss under 38 C.F.R. §§ 4.40 and 4.45 when evaluating musculoskeletal disabilities.

The VA frequently treats initial-rating appeals like standard increased-rating claims and improperly focuses only on current symptom severity. Adjudicators often fail to analyze earlier evidence showing periods of greater impairment that may support staged ratings. VA also commonly references functional-loss regulations without meaningfully applying them to the facts of the case.

• VA assigns one flat rating even though the record shows materially different levels of disability across the initial period.
• VA often states a conclusion without applying the controlling rule from this case to the actual facts of the record.

A veteran is granted service connection for migraine headaches with a 10% rating effective in 2018. Early treatment records show migraines occurring several times per month with emergency room visits and periods of complete prostration. By 2022, the condition partially improves and headaches occur less frequently.

The VA denies a higher rating by focusing primarily on the veteran’s current symptoms.

Under Fenderson v. West, VA must evaluate the disability throughout the entire initial-rating period and may assign staged ratings reflecting higher levels of impairment during earlier portions of the appeal period.

Fenderson is one of the most important cases for maximizing ratings during the initial-rating appeal period.

Strategically, the case is extremely useful whenever:

• symptoms fluctuated over time,
• earlier records show greater severity,
• temporary worsening periods occurred,
• symptoms later improved,
• or VA improperly focused only on current evidence.

The case is particularly powerful in migraine claims, mental health claims, orthopedic claims, and other disabilities where severity changes throughout the appeal period.

Fenderson is also highly useful for preserving retroactive benefits because staged ratings can significantly increase compensation during earlier periods of greater impairment.

In musculoskeletal claims, the case additionally supports challenges to inadequate functional-loss analysis under DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45.

Commonly tied to 38 U.S.C. § 1155 and 38 C.F.R. Part 4, including the diagnostic code and functional-loss provisions relevant to the disability.