compensation & pension service

Compensation & Pension Service

GENERAL POLICY IN RATING

April 2008

Veterans Benefits Administration

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OBJECTIVES

Understand general policies related to establishing service connection.

Understand rating policy on special issues. Understand how to use the Rating Schedule

for evaluation purposes.

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RATING AND EVALUATION SECTIONS OF Title 38 CFR Part 3

Topics:1. Basic entitlement considerations 2. Service connection3. Ratings for special purposes4. Rating policy on special issues

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BASIC ENTITLEMENT CONSIDERATIONS

Evidence required to substantiate a claim for service connection:

Service treatment records (STRs), Continuity, Lay statements, First treatment, Recent treatment, and Treatment prior to service, in cases of a pre-existing

condition.

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Continuity = Evidence of ongoing symptomatology of the condition from military service to the present.

When a condition diagnosed in service is held to be chronic (under 38 CFR 3.309(a); or, by nature of symptoms and treatment shown) during service, there is no requirement of evidence of continuity.

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Lay statements = Evidence from people who know the veteran and describing observations about the veteran’s condition.

Lay persons cannot give a diagnosis.

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First treatment = Evidence to show the first treatment for the claimed disability following service.

Recent treatment = Evidence to show recent treatment and current severity for the claimed condition.

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Treatment prior to service = May be needed for cases involving pre-existing conditions

Service Treatment Records = Needed in all cases

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LINE OF DUTY AND MISCONDUCT (§3.301)

Direct service connection may be granted only when a disability or cause of death:– Was incurred or aggravated in the line of duty,

and– Not the result of the veteran’s own willful

misconduct, or– The result of the abuse of alcohol or

drugs, for claims filed after October 31, 1990.

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LINE OF DUTY AND MISCONDUCT

In 1990, 38 U.S.C. 1110 amended to exclude payment of compensation for disability contracted in the line of duty that is the result of the veteran’s own abuse of alcohol or drugs.

In Allen v. Principi (2001), the Federal Circuit found that 38 U.S.C. 1110 permits a veteran to receive compensation for an alcohol abuse or drug abuse disability acquired as secondary to, or as a symptom of, a veteran’s service-connected disability.

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LINE OF DUTY AND MISCONDUCT

According to the Federal Circuit, section 1110 precludes compensation only in two situations:– For primary alcohol abuse disabilities, and– For secondary disabilities that result from primary

alcohol abuse. “Primary” defined as meaning an alcohol abuse

disability arising during service from voluntary and willful drinking to excess.

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DIRECT SERVICE CONNECTION (§§3.303 and 3.304)

Direct service connection = The facts, as shown by the evidence, establishes that an injury or disease resulting in disability was incurred during military service.

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DIRECT SERVICE CONNECTION

Determinations as to service connection will be based on: – Review of the entire evidence of record, with – Due consideration to the policy of VA to

administer the law under a broad and liberal interpretation consistent with the facts in each individual case. (§3.303(a))

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DIRECT SERVICE CONNECTION

Several principles may require consideration when determining direct service connection:

Presumption of soundness, Chronicity and continuity, Pre-service disabilities noted in service, and Post-service initial diagnosis of disease.

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PRESUMPTION OF SOUNDNESS

The veteran is considered to have been in sound condition when accepted into service except as to conditions noted at entrance into service, or where clear evidence demonstrates that the condition existed prior to service. (§3.304(b))

For peacetime service prior to 1-1-47, presumption of soundness arises after 6 months of continuous service.

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SERVICE CONNECTION BASED ON AGGRAVATION (§3.306)

Service connection may be granted for a condition which pre-existed service, if the condition was shown to be aggravated during service.

Aggravation is presumed if there is an increase in disability during such service, unless the increase was due to the natural progression of the disease.

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SERVICE CONNECTION BASED ON AGGRAVATION

Aggravation is not applicable if no evidence of increase in service.

The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, will not be considered service-connected unless the condition is otherwise aggravated by service.

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SERVICE CONNECTION BASED ON PRESUMPTIVE PROVISIONS (§3.307)

Some diseases are very insidious and slow in development. Under certain circumstances, it will be conceded that these conditions may have originated in service without it being known or without apparent symptoms.

There are specific safeguards and rules that must be observed.

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SERVICE CONNECTION BASED ON PRESUMPTIVE PROVISIONS

Presumptive service connection for chronic disease requires:– 90 days of wartime service or service after

December 31, 1946. – The 90 days must be continuous service within or

extending beyond a wartime period or after December 31, 1946.

– Any length of service satisfies 38 CFR 3.309(c) (POW) and (e) (herbicides) disabilities.

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38 CFR 3.309 (a) and (b) contain the diseases subject to presumptive service connection as chronic or tropical diseases.

Chronic diseases listed in 38 CFR 3.309(a) must have become manifest to a degree of 10% or more within one year from date of separation, with three exceptions:– Hansen's disease (leprosy) – 3 years– Tuberculosis – 3 years– Multiple sclerosis – 7 years

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Tropical diseases in 38 CFR 3.309(b) must have become manifest to a degree of 10% or more within one year from date of separation, or at a time when standard accepted treatises indicate the incubation period commenced during such service.

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38 CFR 3.309(e) contain the diseases subject to presumptive service connection due to exposure to herbicides. They shall have become manifest to a degree of 10% or more at any time after service, except:– Chloracne or other consistent acneform disease, – Porphyria cutanea tarda, and – Acute and subacute peripheral neuropathy– 10% or more within a year after last date of

exposure in service

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The presumption of service incurrence for the diseases listed in 38 CFR 3.309 may be rebutted by evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease.

As to tropical diseases, the fact that the veteran had no service in a locality having a high incidence of the disease may be considered as evidence to rebut the presumption. The known incubation periods should be used as a factor in rebuttal as showing inception before or after service.

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SPECIAL ISSUES RELATING TO GENERAL RATING POLICIES

§3.309 provides list of diseases subject to presumptive service connection:

§3.309(a) and (b), chronic and tropical diseases, previously discussed

§3.309(c), diseases specific to former prisoners of war §3.309(d) and 3.311, diseases

specific to radiation-exposed veterans

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SPECIAL ISSUES RELATING TO GENERAL RATING POLICIES

§3.309(e), diseases associated with herbicide exposure:– §3.307(a)(6) provides the definition of “service in

the Republic of Vietnam.” VA only concedes presumption of exposure to herbicides for service members who had actually set foot on Vietnamese soil or served on a craft in its inland waterways (VAOPGCPREC 27-97).

– Korea DMZ, April 1968 - July 1969, see M21-1MR IV.ii.2.C.10.

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A disability, which is proximately due to, or the result of a service-connected disease or injury will be service connected.

Diabetes Diabetic Retinopathy

SECONDARY CONDITIONS(§3.310)

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SECONDARY CONDITIONS

An increase in non-service connected disability caused by aggravation from a service-connected disability will also be service-connected. (Allen v. Brown, 1995)

Cardiovascular disease and amputation of lower extremities at certain levels

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The death of a veteran will be considered as being due to a service-connected disability when the evidence establishes that such disability was either the principle or contributory cause of death.

CAUSE OF DEATH (§3.312)

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This section specifically addresses that service connection should be granted for non-Hodgkin’s lymphoma (NHL) which develops subsequent to service in Vietnam.

SERVICE IN VIETNAM (§3.313)

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Persian Gulf War veterans who suffer from qualifying chronic disabilities resulting from undiagnosed illnesses may receive disability compensation, if:

The disability appeared during service in Southwest Asia theater of operations during the Persian Gulf War, or is shown to a compensable level at any time since then through December 31, 2011, AND

UNDIAGNOSED ILLNESSES (§3.317)

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UNDIAGNOSED ILLNESS (§3.317)

By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.

Qualifying chronic disabilities:– Chronic fatigue syndrome– Fibromyalgia– Irritable bowel syndrome

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GENERAL RATING CONSIDERATIONS (§3.321)

The provisions contained in the rating schedule represent the average impairment in earning capacity in civil occupations resulting from disability.

Exceptional cases: For the exceptional case where the schedular evaluation is inadequate, the USB or C&P Director can authorize an extra-schedular evaluation.

Defined as: An exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization.

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The evaluation assigned will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service.

Current disability (minus) Preexisting disability = Evaluation assigned

If current disability is total (100%), no deduction

RATING DISABILITIES AGGRAVATED BY SERVICE (§3.322)

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Where there are two or more disabilities, a combined evaluation will be computed using the Combined Rating Table found in 38 CFR 4.25 and rules prescribed in the Schedule for Rating Disabilities.

COMBINED RATINGS (§3.323)

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MULTIPLE NONCOMPENSABLE SERVICE-CONNECTED DISABILITIES (§3.324)

If a veteran has two or more non-compensable (0%) service-connected disabilities that interfere with normal employability, a 10-percent combined evaluation may be assigned.

This is an inferred issue that must be addressed in all cases with multiple non-compensable evaluations.

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EXAMINATIONS (§3.326)

If medical evidence accompanying a claim is not adequate for rating purposes, a VA exam may be authorized. Individuals are required to report.

An examination is not necessary if other medical evidence is adequate for rating purposes.

Benefits to a former POW will not be denied unless they have been offered a complete POW Protocol Examination.

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RE-EXAMINATIONS AND PERMANENCY (§3.327)

Review examinations will be requested when VA determines there is a need to verify either continued existence or the current severity of a disability.

The time period for a review examination may be provided by the Rating Schedule or may be at the discretion of the RVSR.

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RE-EXAMINATIONS AND PERMANENCY (§3.327)

Veterans are required to report for re-examinations.

Failure to report for the examination without good cause may result in reductions in evaluations subject to 38 CFR 3.655 and due process provisions of 38 CFR 3.105(e).

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PERMANENT & TOTAL RATINGS AND UNEMPLOYABILITY (§3.340)

Total disability is considered to exist when there is an impairment of mind or body that is sufficient to render it impossible for the average person to follow substantially gainful employment.

Will not be assigned for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

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PERMANENT & TOTAL RATINGS AND UNEMPLOYABILITY

Total disability may or may not be permanent.

Permanence of total disability exists when such impairment is reasonably certain to continue through the life of the disabled person.

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CONTINUANCE OF TOTAL DISABILITY RATINGS (§3.343)

Generally, total disability ratings when warranted by the severity of the condition will not be reduced, in the absence of clear error, without an examination showing material improvement.

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CONTINUANCE OF TOTAL DISABILITY RATINGS

In cases of Individual Unemployability, reductions can be made under 38 CFR 3.105(e). However, reduction cannot be made unless the veteran has been occupied in substantially gainful employment for 12 consecutive months.

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STABILIZATION OF EVALUATIONS (§3.344)

If an examination indicating improvement is less full and complete that the examination on which payments were authorized or continued, it cannot be used as a basis for reduction.

Ratings on account of disease subject to temporary or episodic improvement cannot be reduced on any one examination, unless all the evidence of record warrants a conclusion that sustained improvement has been shown.

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STABILIZATION OF EVALUATIONS

Ratings based on diseases which become comparatively symptom free after prolonged rest, will not be reduced based on examinations reflecting the results of bed rest.

Sustained improvement must be demonstrated under the ordinary conditions of life.

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STABILIZATION OF EVALUATIONS

If doubt remains after consideration of all the evidence, continue the rating with an examination to be rescheduled in 18, 24, or 30 months.

This only applies to ratings that have continued at the same level for 5 or more years.

It does not apply to disabilities that have not stabilized and are likely to improve.

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“Special Monthly Compensation” recognizes the severity of certain disabilities or combinations of disabilities by adding an additional compensation to the basic rate.

More on SMC in later lessons.

SPECIAL MONTHLY COMPENSATION(38 CFR 3.350)

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BENEFITS UNDER 38 U.S.C.1151 (38 CFR §§3.358 and 3.361)

If it is determined that there is an additional disability or aggravation of an existing disease or injury suffered as a result of treatment by the VA which includes, hospitalization, medical or surgical treatment, examination, or vocational rehabilitation training: Compensation will be payable for such disability.

§3.358 – Claims received before 10-1-97 §3.361 – Claims received on or after 10-1-97

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BENEFITS UNDER 38 U.S.C.1151

§3.361 – Claims received on or after 10-1-97– Regulation includes compensation for additional

disability due to Compensated Work Therapy (CWT) for claims pending before VA on November 1, 2000 or received after that date.

Certain ancillary benefits cannot be awarded by reason of a qualifying disability under 1151 – see M21-1MR IV.ii.2.G.35.g.

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BENEFITS UNDER 38 U.S.C.1151

Determining whether a veteran has an additional disability

Establishing the cause of additional disability or death– Actual causation required– Continuance or natural progress of a disease or

injury– Veteran's failure to follow medical instructions

Establishing the proximate cause of additional disability or death

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PAIRED ORGANS AND EXTREMITIES (§3.383)

Compensation is payable for combinations of service- connected and nonservice-connected disabilities, as if both disabilities were service-connected as long as the nonservice-connected disability is not due to the veteran’s own willful misconduct.

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PAIRED ORGANS AND EXTREMITIES

Impairment of vision in one eye SC, and impairment in other eye NSC (PL 110-157)

Loss or LOU of one kidney SC, and involvement of other kidney NSC

Hearing impairment in one ear SC at 10%+, and impairment in other ear NSC meeting §3.385 criteria

Loss or LOU one hand/foot SC, and Loss or LOU of other hand/foot NSC

Permanent SC of one lung 50%+, and disability of other lung NSC

http://dir.coolclips.com/Healthcare/Anatomical_Diagrams/Organs/Human_lungs_medi0024.html

http://dir.coolclips.com/Healthcare/Anatomical_Diagrams/Organs/Organs_vc049071.html

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PROTECTED EVALUATIONS (§3.951)

Changes to the Rating Schedule are not grounds for reduction of a disability evaluation unless the condition has actually improved.

Any disability which has been continuously rated at or above an evaluation for 20 years or more cannot be reduced, except upon a showing of fraud.

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PROTECTION OF SERVICE CONNECTION (§3.957)

Service connection for any disability or death, which has been in effect for 10 or more years, will not be severed except on a showing that the original grant was based on fraud, or

It is clearly shown that the person concerned did not have the requisite service or character of discharge.

NOTE: There is no protection if the claimant does not have “status” as a veteran based on qualifying service or character of discharge.

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SCHEDULE FOR RATING DISABILITIES 38 CFR Part 4

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SCHEDULE FOR RATING DISABILITIES

Topic Objective: To become familiar with the general policy

information from the Rating Schedule, specifically §§4.1 – 4.31

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ESSENTIALS OF EVALUATING RATINGS (38 CFR §4.1)

The Rating Schedule is primarily a guide in evaluating disability. The percentage ratings represent the average impairment in earning capacity in civil occupations.

For the application of this schedule, accurate and fully descriptive medical examinations are required.

Because of changes in laws, medical knowledge, and conditions, it is essential that each disability be viewed in relation to its history.

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INTERPRETATION OF EXAM REPORTS (38 CFR §4.2)

It is the responsibility of the Rating Specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.

If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, return the report as inadequate for evaluation purposes.

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RESOLUTION OF REASONABLE DOUBT (38 CFR §4.3)

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case.

If after consideration of all the evidence (facts), a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.

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EVALUATION OF EVIDENCE (38 CFR §4.6)

Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by the Rating Specialist in light of the established policies of VA to the end that the decision will be equitable and just as contemplated by the requirements of the law.

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HIGHER OF TWO EVALUATIONS (38 CFR §4.7)

Where there is a question as to which of two evaluations should be applied:– The higher evaluation will be assigned if the

disability picture more nearly approximates the criteria required for that rating.

– Otherwise, the lower rating will be assigned.

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CONGENITAL OR DEVELOPMENTAL DEFECTS (38 CFR §4.9)

The following are not considered diseases or injuries for compensation purposes under the law:

Congenital or developmental defects, Absent, displaced or supernumerary (exceeding

the usual) parts, Refractive error of the eye, Personality disorder, and Mental deficiency.

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FUNCTIONAL IMPAIRMENT (38 CFR §4.10)

The basis of disability evaluations is the ability of the body as a whole, or the psyche, or of a system or organ of the body to function under ordinary conditions of daily life including employment.

Evaluations are based on lack of usefulness. Medical exams must fully describe the effects of

disability upon a person’s ordinary activity.

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CHANGE OF DIAGNOSIS (38 CFR §4.13)

When any change in evaluation is to be made, assure that there has been an actual change in conditions, for better or worse, and not merely a difference in thoroughness of the examination or in the use of descriptive terms.

The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability was granted.

Does not preclude correction of erroneous ratings.

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AVOIDANCE OF PYRAMIDING (38 CFR §4.14)

The evaluation of the same disability under various diagnoses is to be avoided.

Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate body system for their evaluation.

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AVOIDANCE OF PYRAMIDING

If there are residual symptoms that are due to a condition that is not service-connected, these symptoms should not be applied to the service- connected condition.

There are numerous conditions that have similar manifestations. Do not use the same manifestations to rate different disabilities.

If necessary, ask for an opinion from a medical examiner as to which disability the manifestations apply.

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TOTAL DISABILITY RATING (§ 4.15)

Total disability exists when there is present any impairment of the mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.

Permanent total disability is expected to last throughout the life of the disabled person.

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TOTAL DISABILITY RATING (§ 4.15)

The following are considered to be permanent total disabilities:

Permanent LOU of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or

Becoming permanently helpless or bedridden. Other total disability ratings are shown in the

various body systems of the rating schedule.

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TOTAL DISABILITY FOR COMPENSATION BASED ON UNEMPLOYABILITY

(38 CFR §4.16)

Assign a total disability rating for compensation, where the schedular is less than total (100%), when the disabled person, is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.

Commonly referred to as individual unemployability (IU).

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INDIVIDUAL UNEMPLOYABILITY

The following criteria must also be met: A single disability evaluated at 60% or more. If two or more disabilities: A single disability

evaluated at 40% or more, with a combined rating of 70% or more.

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The following will be considered “one” disability: Disabilities of one or both upper extremities,

or one or both lower extremities, including the bilateral factor;

Disabilities resulting from common etiology or a single accident;

Disabilities affecting a single body system;

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Multiple injuries incurred in action; or Multiple disabilities incurred as a prisoner of

war.

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Marginal employment shall not be considered substantially gainful employment.

If veteran is unemployable by reason of service-connected disabilities but fails to meet the percentage standards, submit the case to Compensation & Pension Service, for extra-schedular consideration.

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TOTAL DISABILITY FOR PENSION BASED ON UNEMPLOYABILITY AND

AGE (38 CFR §4.17) Veterans who are basically eligible and who are

unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled.

The disability requirements to be entitled to NSC disability pension are the same as for entitlement to individual unemployability under §4.16(a).

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TOTAL DISABILITY FOR PENSION

If the veteran fails to meet the percentage requirement for entitlement to pension, but meets the basic entitlement criteria and is unemployable:– Refer the claim to VSCM for extra-

schedular consideration under 38 CFR 3.321.

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MISCONDUCT ETIOLOGY (38 CFR §4.17a)

A permanent and total disability rating will not be precluded by reason of the co-existence of a misconduct disability when:

A veteran, regardless of employment status, also has innocently acquired a 100% disability, or

Where unemployable, the veteran has other disabilities innocently acquired, which meet the percentage requirements and would render the average person unable to secure or follow a substantially gainful occupation.

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UNEMPLOYABILITY (38 CFR §4.18)

A veteran may be considered unemployable upon termination of employment which was provided on account of disability, or when it is satisfactorily shown that he or she is unable to secure further employment.

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AGE IN SERVICE CONNECTED CLAIMS (38 CFR §4.19)

Age may not be considered as a factor in evaluating service-connected disability.

Unemployability due to advancing age or intercurrent disability may not be used as a basis for a total SC disability rating.

Age can be considered for nonservice-connected disability pension.

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ANALOGOUS RATINGS (38 CFR §4.20)

Analogous = Something that is similar to something else.

When an unlisted condition is encountered, rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely similar.

Do not use analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.

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APPLICATION OF THE RATING SCHEDULE (38 CFR §4.21)

It is not expected that all cases will show all the findings specified in the Rating Schedule.

Findings sufficiently characteristic to identify the disease and the disability, and the coordination of rating with impairment of function will, however, be expected in all instances.

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RATING DISABILITIES AGGRAVATED BY ACTIVE MILITARY SERVICE

(38 CFR 4.22)

When service connection is granted for a pre-existing condition aggravated by service, determine the percentage by:

Current disability (minus) Disability at the time of entrance = Evaluation assigned

If current disability is total (100%), no deduction

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ATTITUDE OF THE RATING SPECIALIST (38 CFR §4.23)

The majority of applicants are disabled and are seeking benefits of law to which they believe they are entitled.

Rating Specialists must not allow their personal feelings to intrude; an antagonistic, critical, or even abusive attitude on the part of a claimant should not in any instance influence the Rating Specialist in handling the case.

Fairness and courtesy must be shown at all times.

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CORRESPONDENCE (38 CFR §4.24)

Address to the Director, C&P Service, all correspondence relative to:– Interpretation of the rating schedule, – Request for advisory opinions, – Questions regarding lack of clarity or application

to individual cases involving unusual difficulties. Provide clear statement of the facts and the claims

file with recent adequate exam report.

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COMBINED RATING TABLE (38 CFR §4.25)

The percentage of disabilities are not added together but are determined based on a combined rating table. For example:– A person having a 60% disability is considered 40%

efficient.– The affect of another 30% disability is to leave only

70% of the 40% efficiency remaining = 28% efficiency altogether.

– The individual is thus 72% disabled.

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COMBINED RATING TABLE

In using the combined rating table take the disability with the highest evaluation first, and then follow the chart proceeding from the highest to the lowest evaluation to obtain your total.

Let’s take a look at the combined rating table.

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BILATERAL FACTOR (38 CFR 4.26)

When disability results from disease or injury of both arms, or both legs, or of paired muscles:– The ratings for the disabilities of the right and left

sides will be combined, and – 10% of this value will be added (not combined) – Before proceeding with further combinations, or

converting to degree of disability.

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COMBINED RATING TABLE AND BILATERAL FACTOR EXERCISES

The veteran has disabilities evaluated at 60 percent, 20 percent, 10 percent, and 10 percent (the two 10 percents represent bilateral disabilities).

What is this veteran’s combined total evaluation?

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The veteran has disabilities evaluated at 40 percent, 20 percent, and 10 percent (the 40 and 20 percent disabilities are bilateral).

What is the veteran’s combined total evaluation?

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The veteran has disabilities evaluated at 50 percent, 50 percent, and 40 percent (the two 50 percent disabilities are bilateral).

What is the veteran’s combined total evaluation?

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USE OF DIAGNOSTIC CODES (38 CFR §4.27)

Exercise great care in the selection of the diagnostic code and its citation on the rating sheet.

In assigning an analogous code:– Use the first two digits from that part of the

schedule which closely identifies the body system involved, followed by 99, and then

– The diagnostic code of the condition that the disability is analogous.

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USE OF DIAGNOSTIC CODES

Example of analogous code: Gastroesophageal reflux disease (GERD) does

not have it’s own diagnostic code, so you would use code 7399-7346

7300 is the diagnostic code group for the digestive system and 7346 is for hiatal hernia

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PRESTABILIZATION RATING FROM DATE OF DISCHARGE FROM

MILITARY SERVICE (38 CFR §4.28)

Grant a 100% prestablization evaluation for an unstabilized condition with severe disability where substantially gainful employment is not feasible or advisable.

Grant a 50% prestabilization rating for unhealed or incompletely healed wounds or injuries where material impairment of employability is likely.

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PRESTABILIZATION RATINGS

Do not assign a prestabilization rating in any case where a total rating is immediately assignable under the regular provisions of the rating schedule or on the basis of IU.

Do not assign the 50% prestabilization rating in any case in which a rating of 50% or more is immediately assignable under the regular provisions.

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A VA exam is not needed for a prestabilization rating, but if there is an exam of record this does not preclude still granting a prestabilization rating.

Prestabilization ratings are for assignment in the immediate post discharge period and will continue for 12 months following discharge from service.

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A prestabilization rating may be changed to a regular schedular total rating or one authorizing a higher benefit at any time.

A VA examination is needed between 6 to 12 months after discharge.

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If reduction warranted based on exam, continue evaluation to the end of the12th month or per §3.105(e).

Assign SMC concurrently whenever records are adequate to establish entitlement.

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RATINGS REQUIRING HOSPITAL TREATMENT FOR OBSERVATION

(38 CFR §4.29)

A total disability rating (100%) will be assigned when a SC disability has required hospital treatment in excess of 21 days at:– A VA Facility, or– An approved hospital, or– Hospital observation at VA expense.

How to handle authorized absences

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HOSPITALIZATION – PARAGRAPH 29

100% evaluation may continue for convalescence 1 – 3 months in addition to hospitalization period

Extensions of 1 – 3 months beyond this for the100% evaluation will need approval of VSCM.

Reductions not subject to §3.105(e)

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CONVALESCENCE RATINGS (38 CFR §4.30)

A total disability rating (100%) will be assigned if treatment of a SC disability resulted in:– Surgery requiring one month convalescence,– Surgery with serious postoperative residuals, or– Immobilization by cast, without surgery, of one

major joint or more.

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CONVALESCENCE RATINGS – PARAGRAPH 30

The period for this convalescence is one, two, or three months with possible extension up to six months.

Extensions beyond 6 months must be approved by VSCM.

Reductions not subject to §3.105(e)

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A NO-PERCENT RATING (38 CFR §4.31)

In every case where the rating schedule does not provide a zero percent evaluation for a diagnostic code:– A zero percent evaluation shall be assigned

when the requirements for a compensable evaluation are not met.

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GILBERT v. DERWINSKI (October 12, 1990)

Remanded by the Court of Appeals for Veterans Claims:– Insufficient “reasons and bases”– Rating failed to provide value given to

evidence– No explanation given as to why “benefit of

the doubt” not warranted

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GILBERT v. DERWINSKI (August 2, 1991)

New decision was made which included:– Ample reasons and bases for decision– Discussed weight of evidence, and– Provided reasoning as to why “benefit of the

doubt” was not warranted. Court of Appeals for Veterans Claims upheld

prior decision.

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SAMMARCO v. DERWINSKI (January 10, 1991)

The Court of Appeals for Veterans Claims remanded this case because:– The reasons and bases were inadequate– The Board did not identify findings it deemed

crucial to its decision– The decision did not account for evidence

which it found to be persuasive or unpersuasive

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LESSONS LEARNED

Provide adequate reasons and bases in decisions

Provide explanation of weight given to evidence if they are in conflict

Discuss “benefit of doubt” when applicable (§3.102).

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HANDOUTS IN STUDENT GUIDE

Changes to the Rating Schedule & dates Legislation related to herbicide exposure &

dates

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REVIEW ACTIVITY

Questions?Review Exercise

compensation & pension service

Documents

military service

service connection3

service treatment records

alcohol abuse disability

abuse of alcohol

recent treatment

veterans condition

drug abuse disability