7.01 Service Connection--Direct or Presumptive 7-I-1 7.02 Determination of Service Incurrence 7-I-2 7.03 Disabilities Related to Combat 7-I-3 7.04 Definition of Injury--38 U.S.C. 101(24) and 38 CFR 3.6(a) 7-I-3 7.05 Aggravation of Preservice Disability 7-I-3 7.06 Claims For Secondary Service Connection By Aggravation 7-I-4
SUBCHAPTER II. UNEMPLOYABILITY DETERMINATIONS IN COMPENSATION CASES
7.07 Individual Unemployability 7-II-1 7.08 Evidence Requirements 7-II-1 7.09 Rating Practices and Procedures 7-II-2 7.10 Multiple Injuries Incurred in Action or as Prisoner of War (POW) 7-II-4 7.11 Claims Requiring Central Office Approval 7-II-4 7.12 Control of Evaluations Based on Individual Unemployability 7-II-4
SUBCHAPTER III. UNEMPLOYABILITY DETERMINATIONS IN PENSION CASES
7.13 Requirements 7-III-1 7.14 Unemployability 7-III-2 7.15 Marginal Employment 7-III-3 7.16 Factors Relating to Unemployability or Marginal Employment of Farmers 7-III-4 7.17 Unemployment Due to Loss of Industry in the Community 7-III-5 7.18 Rating Practices and Procedures 7-III-5
SUBCHAPTER IV. ENVIRONMENTAL HAZARDS
7.19 Reconsideration of Previously Denied Claims Based on Exposure to Ionizing Radiation During Occupation of Hiroshima or Nagasaki or in Nuclear Testing 7-IV-1 7.20 Presumptive Diseases Associated With Exposure To Herbicide Agents 7-IV-1 7.21 Asbestos-Related Diseases 7-IV-5 7.22 Compensation for Disabilities Associated with Gulf War Service 7-IV-7
SUBCHAPTER V. POW RATINGS
7.23 Rating Claims Based on Prisoner of War Status 7-V-1
SUBCHAPTER VI. 38 U.S.C. 1151 RATINGS
7.24 Compensation or DIC under 38 U.S.C. 1151 7-VI-1
7-i M21-1, Part VI September 17, 2004 Change 117
SUBCHAPTER VII. MISCELLANEOUS RATING CONSIDERATIONS
7.25 Benefit-of-the-Doubt 7-VII-1 7.26 Special Compensation for Certain Paired Organs or Extremities 7-VII-1 7.27 Disability or Death from Use of Alcohol 7-VII-1 7.28 Disability or Death from Use of Drugs 7-VII-2 7.29 Disability or Death from Use of Tobacco Products 7-VII-3
A.1 Suggested Rating Decision Format for Proposed Reduction to Schedular Evaluation, Noncompletion of Field Examination 7-E-1 A.2 Suggested Rating Decision Format for Reduction to Schedular Evaluation, Noncompletion of Field Examination 7-E-2 A.3 Suggested Rating Decision Format for Restoration of Unemployability, Completion of Field Examination 7-E-3
A Poverty Threshold 7-A-1 B History of Presumptive Disabilities for Prisoners of War Under 38 CFR 3.309(c) 7-A-2 C History of Presumptive Disabilities for Ionizing Radiation Under 38 CFR 3.309(d) 7-A-3
March 20, 2002 M21-1, Part VI Change 84 CHAPTER 7. RATING PROCEDURES FOR SPECIFIC ISSUES
SUBCHAPTER I. SERVICE CONNECTION
7.01 SERVICE CONNECTION--DIRECT OR PRESUMPTIVE
a. General. If service connection is claimed for a disease diagnosed after service, consider first the possibility of direct service connection (38 CFR 3.303(d)). Do not invoke presumption of service connection for chronic or tropical diseases until the possibility of direct service connection has been eliminated. Do not routinely disallow claims for disabilities indicated as beginning after service merely because the veteran is not entitled to presumptive service connection, or because the disability is not subject to presumption (38 CFR 3.303(d)).
b. Peacetime Service Before January 1, 1947. The rules pertaining to direct and presumptive service connection are as follows:
(1) Presumption of Soundness. A veteran must have had active, continuous service of 6 months or more to be entitled to presumption of soundness upon entrance onto active duty (38 CFR 3.305(b)).
(2) Presumptive Service Connection for Chronic Diseases. There is no provision for presumptive service connection for chronic diseases (38 CFR 3.308(a)).
(3) Presumptive Service Connection for Tropical Diseases. A veteran must have had active, continuous service of 6 months or more to meet the requirements for presumptive service connection for diseases listed in 38 CFR 3.309(b). (See 38 CFR 3.308(b).)
c. Wartime and Peacetime Service After December 31, 1946. The rules pertaining to direct and presumptive service connection are as follows:
(1) Presumption of Soundness. There is no minimum active duty requirement to be met before the presumption of soundness upon enlistment can be invoked (38 CFR 3.304(b)).
(2) Presumption of Service Connection. A veteran who had active, continuous service of 90 days or more meets the requirements for presumptive service connection for either chronic diseases (38 CFR 3.309(a)) or tropical diseases (38 CFR 3.309(b)). (See 38 CFR 3.307.)
d. Active Duty For Training. Active duty for training is not considered active duty unless service connection is granted for a condition incurred in or aggravated during the period of active duty for training, or for a condition resulting from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident while proceeding directly to or returning directly from a period of active duty for training. The presumption of soundness is not applicable to an individual who has served only on active duty for training and has not established any service-connected disability. If a veteran is service connected for a disability which occurred during active duty for training, the presumption of soundness would then apply for other disabilities alleged to have occurred during that period of active duty for training. (Paulson v. Brown, 7 Vet. App. 466 (1995).) An individual whose service consisted entirely of inactive duty training may not be presumptively service connected for a disability unless he or she was otherwise (1) disabled from an injury directly incurred in or aggravated during the period of inactive duty training, or (2) disabled from an acute myocardial infarction, a cardiac arrest or a cerebrovascular accident that occurred during such training or that occurred while proceeding directly to or returning directly from such training. (See 38 CFR 3.6.)
NOTE: The presumption of service connection for radiogenic diseases applies to individuals who participated in radiation-risk activities during a period of active duty for training or inactive duty for training. (See 38 CFR 3.309(d)(4)(i).)
M21-1, Part VI March 20, 2002 Change 84
e. Direct Service Connection. A veteran who lacks the requisite 90 days or 6 months of service may be granted service connection only on a direct basis. Also, grant only direct service connection for any disability not included in 38 CFR 3.309.
f. Definition of Continuous Active Service. "Continuous active service" excludes lengthy periods of extended absence from duty such as unauthorized absence or other extended nonpay status. The following facts and findings are set forth in General Counsel Opinion 4-80:
The servicemember was absent from duty for 1,344 days before returning to military control. The veteran received an honorable discharge 9 days later and developed a chronic disease within 1 year of discharge. Since the veteran was without active, continuous service for all but 9 days of the 3-3/4 years preceding separation, the continuous service requirement of 38 CFR 3.307 is not met.
g. Service Connection for Congenital/Developmental Conditions. Congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration. A disease, even one which is hereditary in origin, e.g., retinitis pigmentosa, polycystic kidney disease, sickle cell diseases and Huntington's disease (chorea), is usually capable of improvement or deterioration.
(1) Service connection may be granted, if warranted, for diseases of congenital, developmental or familial (hereditary) origin which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service. Service connection may also be established pursuant to 38 CFR 3.309(a) if a hereditary or familial disease first became manifest to a compensable degree within the presumptive period following discharge from service provided the rebuttable presumption provisions of 38 CFR 3.307 are satisfied (O.G.C. Precedent Opinion 1-90, March 16, 1990).
(2) Diseases of hereditary origin can be considered to be incurred in service if their pathological signs or symptoms were manifested after entry on duty. Even if the individual is almost certain to eventually develop a condition, a genetic or other familial predisposition does not constitute having the disease. Only when actual symptomatology or signs of pathology are manifest can he/she be said to have developed the disease. At what point the individual starts to manifest signs or symptoms is a factual issue determined by the medical evidence of record in each case.
(3) A hereditary disease which manifests some symptoms before entry on duty, may be found to have been aggravated during service if it progresses during service at a rate greater than normally expected according to accepted medical authority. Again, this is a factual, medical determination which must be based upon the evidence of record and sound medical judgment.
h. Metastasis of Nonradiogenic Cancer. Service connection may not be established under the provisions of 38 CFR 3.311 or 38 CFR 3.309(d) for a listed cancer if it developed as a result of metastasis of a nonradiogenic cancer not listed in either section. See 38 CFR 3.311(g).
7.02 DETERMINATION OF SERVICE INCURRENCE
The results of injuries, including gunshot wounds, acquired before or after service will frequently be encountered. Substantiate the circumstances of the particular injuries which were incurred in service by official records or by other evidence as to incurrence in service in line of duty. A claimant may have been accepted for military service with a notation of one or more scars existing at the time of entrance. Subsequently, he or she may have sustained a wound, with a resulting scar, during service. Finally, after discharge from military service, he or she may have received an injury in civilian life which has resulted in a scar that would be present at subsequent physical examinations. Accordingly, exercise caution in characterizing a scar as the residual of a wound or injury incurred in military service. If there is any doubt on this point, simply describe the scar, without ascribing it to "gunshot wound," "shrapnel wound," etc. If the presence of a scar or scars is recorded in a physical examination report, review 7-I-2
September 28, 2004 M21-1, Part VI Change 119
official records to ensure that the scar or scars are in fact the residuals of wounds in service. If there are any confusing data in this respect in the physical examination report, check official records against the medical examiner's statements to establish the facts.
7.03 DISABILITIES RELATED TO COMBAT
a. General. Title 38 CFR 3.304(d) states that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. This regulation is derived from 38 U.S.C. 1154(b), and lightens the evidentiary burden with respect to disabilities alleged to be the result of combat service.
b. Three-Step Analysis. There are three steps in applying this rule. The first step is to determine whether evidence submitted by the veteran, when considered alone, is satisfactory. Satisfactory evidence generally means evidence which is credible. In determining whether evidence is credible, it is proper to consider internal consistency and plausibility. Statements which contradict other evidence of record may be regarded as unsatisfactory. Second, it must be determined whether the evidence is consistent with the circumstances, conditions, or hardships of such service. If the veteran satisfies both of these requirements, a factual presumption arises that the alleged disease or injury was incurred or aggravated during service. Since 38 U.S.C. 1154(b) stipulates that this presumption can be rebutted by clear and convincing evidence to the contrary, the third step requires a determination as to whether there is such contrary evidence. (Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996.)
7.04 DEFINITION OF INJURY--38 U.S.C. 101(24) AND 38 CFR 3.6(a)
Active service is defined as including any period of inactive duty for training during which the claimant was disabled or died from an injury incurred or aggravated in line of duty. Nontraumatic incurrence or aggravation of a disease process during a period of inactive duty training is not defined as an injury, except for the following: an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurs during such training or while proceeding directly to or returning directly from such training. (See 38 CFR 3.6) Additionally, if the evidence establishes that an individual suffers from a disabling condition as a result of the administration of an anthrax vaccine during inactive duty training, the individual may also be considered disabled by an injury. (See GCPREC 4-2002)
7.05 AGGRAVATION OF PRESERVICE DISABILITY
A preexisting injury or disease may be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the condition (38 CFR 3.306). Additionally, in Splane v. West, 2216 F. 3d 1058(2000), the United States Court of Appeals for the Federal Circuit held that 38 U.S.C. 1112(a) establishes a presumption of aggravation for chronic diseases that existed prior to service, but first became manifest to a degree of disability of 10 percent or more within the presumptive period after service. Such presumption may be rebutted by affirmative evidence to the contrary, or evidence to establish that such disability is due to an intercurrent disease or injury suffered after separation from service (38 CFR 3.307). Always address the issue of aggravation when service connection for a preservice disability is claimed. If service connection by aggravation is not found, the reasons and bases section of the rating should support the decision with relevant findings from the medical record before, during, and after service, demonstrating that the condition which pre-existed service has not increased in its severity.
M21-1, Part VI September 28, 2004 Change 119
a. Consider a veteran to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service. When no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows the disease or injury existed prior to service and that it was not aggravated by service. (38 CFR 3.304(b))
b. Aggravation should not be conceded merely because a veteran's condition was in remission at the time of entry on active duty. The baseline for determining whether there is aggravation of a preexisting disability is in all of a veteran's medical records for that condition, not just those covering the period of enlistment and entry on active duty. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.
c. 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, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (38 CFR 3.306(b)(1))
7.06 CLAIMS FOR SECONDARY SERVICE CONNECTION BY AGGRAVATION
a. Under the provisions of 38 CFR 3.310(a), disabilities which are proximately due to or the result of a service-connected condition will be service connected. An increase in nonservice-connected disability caused by aggravation from a service-connected disability will also be service connected under 38 CFR 3.310(a). (Allen v. Brown, 7 Vet. App. 439 (1995).)
b. In order to adjudicate a claim for secondary service connection for an incremental change in an otherwise nonservice-connected disability, first establish the baseline level of nonservice-connected disability and the level of additional disability which is considered proximately due to the service-connected disability. Request a medical examination, including review of the claims folder, for this purpose. Identify for the examiner the evidence of particular relevance in the claims file. Request that the examiner separately address each of the following medical issues. A medical report that fails to address these issues will not be considered sufficient for rating this type of claim:
(1) The baseline manifestations which are due to the effects of nonservice-connected disease or injury;
(2) The increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability based on medical considerations;
(3) The medical considerations supporting an opinion that increased manifestations of a nonservice-connected disease or injury are proximately due to service-connected disability.
c. An examination which fails to identify baseline findings, or the increment of increased disability due to service-connected causes, would not be adequate for rating purposes.
d. When all potentially relevant records have been obtained, or it is determined that no further evidence can be obtained, order an examination. The examiner must have all available evidence for review when providing an opinion on the issues of aggravation and the degree of increased disability.
February 9, 2005 M21-1, Part VI Change 123
SUBCHAPTER II. UNEMPLOYABILITY DETERMINATIONS IN COMPENSATION CASES
7.07 INDIVIDUAL UNEMPLOYABILITY
a. Requirements. To establish entitlement to total compensation benefits because of individual unemployability, a veteran must claim to be unable to secure or retain employment by reason of service-connected disability. The veteran must meet the schedular requirements of 38 CFR 4.16 or have an extra-schedular evaluation approved by the Compensation and Pension Service (211B); and be unemployable in fact by reason of service-connected disability. The rating activity must consider both the veteran’s current physical condition and employment status when rating claims for total compensation because of individual unemployability. If a 100% service-connected evaluation is awarded, any pending claim for a total disability evaluation based on individual unemployability is moot. (See VAOPGCPREC 6-99.) Do not defer a decision as to the schedular degree of disability pending receipt of evidence sufficient to adjudicate the issue of individual unemployability.
(1) Inferred Claims. It is the duty of the RVSR to identify cases in which the veteran may be entitled to individual unemployability when no specific claim for the benefit has been made. When the record contains evidence of potential entitlement to a total disability evaluation based on individual unemployability, that evidence becomes an inferred claim that must be adjudicated. (See Norris v. West, 12 Vet. App. 413 (1999).) For a claim for individual unemployability to be inferred
• the schedular requirements of 38 CFR 4.16(a) must be met, and • there must be evidence in the veteran’s file or under VA control that shows that he or she might be unemployable due to service-connected conditions.
(a) Sufficient Evidence to Grant. If the RVSR has sufficient evidence to grant individual unemployability when deciding other issues, the benefit should be granted at that time, and the existing end product (EP) should be taken as appropriate. A completed VA Form 21-8940, “Veteran's Application for Increased Compensation Based on Unemployability” is not required for a grant of the benefit if the information is already of record.
(b) Additional Evidence Needed. In situations where individual unemployability is inferred and additional evidence is needed, such as completion of VA Form 21-8940 to furnish employment history, a new EP will be established, provided the two requirements discussed in subparagraph 7.07b(1) are met. It is not proper procedure to send out a VA Form 21-8940 when the schedular requirements are met, but there is no evidence of current service-connected unemployability. If no other issues remain pending, the existing EP will be taken by award action or PCLR and a new EP 021 will be established at the point of initial development. The date of claim will be the date of the new VCAA notification letter to the veteran.
(2) Rating Decision Procedures. The issue of potential individual unemployability entitlement will be shown as deferred in the Rating Decision. Every inferred claim for individual unemployability that is deferred for additional evidence from the veteran must be followed by a formal rating decision, either after the evidence requested has been received, or after the expiration of the notification period. If the veteran does not respond to the request for evidence within 60 days, deny the claim. Once the rating decision has been made and the veteran notified of that decision, the EP 021 established for this issue may be taken.
7.08 EVIDENCE REQUIREMENTS
Use the veteran’s application on VA Form 21-8940 as the basis for development of evidence to support the claim for individual unemployability. When rating claims for total benefits because of individual unemployability, ensure the evidence is sufficient to evaluate both the veteran’s current degree of disability and employment status. Develop all required evidence concurrently. 7-II-1 M21-1, Part VI February 9, 2005 Change 123
a. Medical. Evidence sufficient to support a current evaluation of the extent of all of the veteran’s disabilities must be of record. The evidence shall reflect the veteran's condition within the past 12 months and include, but need not be limited to, results of VA examination, hospital reports, or outpatient treatment records. If the medical evidence of record is incomplete or inconsistent, schedule a medical examination to provide sufficient evidence to rate the claim. Request special tests only when required for proper evaluation of the degree of severity of relevant disabilities.
b. Employment. VA Form 21-8940 requires the veteran to furnish an employment history for the 5-year period preceding the date on which the veteran claims to have become too disabled to work and for the entire time after that date. It is essential that VA Form 21-8940 contain the work history. In addition, request each employer during the 12-month period prior to the date the veteran last worked to complete and return a VA Form 21-4192, “Request for Employment Information in Connection with Claim for Disability Benefits.” Forms indicating only that the veteran retired will routinely require additional development to obtain information as to whether the veteran’s retirement was by reason of disability, and if so, the nature of the disability for which retired.
c. Social Security Disability Records. If available evidence is insufficient to award individual unemployability benefits and the record shows that the veteran is receiving Social Security benefits because of disability, complete copies of the SSA records must be obtained and considered. (See pt. III, par. 9.01.)
d. Vocational Rehabilitation Records
(1) Vocational rehabilitation records must be obtained and considered in individual unemployability claims whenever there is indication that training was not found to be medically feasible. Also, vocational rehabilitation records should be reviewed if there is an indication that a veteran’s attempt to be trained was unsuccessful.
(2) The fact that a veteran either is participating in a program of rehabilitation or has completed such a program and is “rehabilitated” will not preclude a grant of total benefits because of individual unemployability. Deny claims or reduce awards only if the facts demonstrate that the veteran is not precluded from obtaining employment by reason of service-connected disability or has in fact obtained gainful employment.
e. Self-Employment or Tightly Held Corporation
(1) Development to produce evidence necessary to establish the degree to which service-connected conditions have impaired the veteran’s ability to engage in self-employment must generally be more extensive than development where the veteran worked for others. Request the veteran to furnish a statement as to types of work performed, amount of time lost in the previous 12 months due to service-connected disabilities, and number of hours worked per week.
(2) In the case of a self-employed person the issue for consideration is the relationship between the frequency and type of service performed by the veteran for the business and the veteran's net and gross earnings for the past 12 months. Low gross earnings tend to support a finding of marginal employment, especially when considered with the amount of time lost from work due to service-connected disablement. Low net earnings, on the other hand, must be considered in connection with gross income. High gross income tends to indicate that the veteran is capable of engaging in a substantially gainful occupation. Inability to make a profit is not synonymous with the inability to engage in substantially gainful employment.
(3) A tightly or closely held corporation is usually a family corporation. If the veteran’s name is the same as the corporation’s, consider the possibility of a tightly held corporation. Since the veteran may control the amount of wages paid to himself/herself, do not make a finding of marginal employment solely on the basis of low wages. If reported wages appear low for the work performed, request a field examination per part III, chapter 8 to determine the veteran’s relationship to the corporation and corporate earnings. The issue for consideration is whether the frequency and type of service performed by the veteran equates to substantially gainful employment. In this regard, 7-II-2
February 9, 2005 M21-1, Part VI Change 123
evidence that the veteran received or was entitled to receive other remuneration from the corporation, such as stock dividends or loans, must be considered.
7.09 RATING PRACTICES AND PROCEDURES
a. Rating Consideration. Consider the following factors when rating claims for total benefits because of individual unemployability:
(1) Make a decision as to whether the veteran meets the requirements for a schedular 100 percent evaluation before considering the issue of individual unemployability.
(2) Verify that the disability requirements set out in 38 CFR 4.16 are met. If the veteran specifically claims individual unemployability and any of the requirements of 38 CFR 4.16 are not met, the rating should be formally coded to indicate denial of individual unemployability. If the veteran disagrees with the decision, the Statement of the Case should cite the relevant portion of 38 CFR 4.16 as the authority for the denial.
(3) Usually the evidence must establish that the service-connected conditions have precluded employment continuously since date of incurrence or the date the service-connected condition reached a static level of disability.
(4) Establish individual employability on a factual basis. Do not presume individual unemployability.
(5) Apply the concept of average impairment in earning capacity to determinations of the percentage of disability, not to determinations as to entitlement to total compensation because of individual unemployability.
(6) The terms "unemployability" and "unemployable" are not synonymous for compensation purposes. A veteran may be unemployed or unemployable for a variety of reasons. A determination as to entitlement to total benefits because of individual unemployability is appropriate only when a veteran's unemployability is a result of service-connected disabilities.
(7) When considering the issue of entitlement to total compensation benefits because of individual unemployability, substantially gainful employment is defined as that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.
(8)(a) In an individual unemployability determination, marginal employment shall not be considered substantially gainful employment. Marginal employment exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (which includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consider the nature of the employment and the reason for termination in all claims. (38 CFR 4.16)
(b) Poverty thresholds are contained in Addendum A to this chapter. The Bureau of the Census revises the poverty thresholds annually. When the revised amounts are published, VBA will publish notices in the Federal Register and revise Addendum A.
(9) Determine whether the severity of the service-connected conditions preclude the veteran from obtaining or retaining substantially gainful employment. Identify and isolate the effects of extraneous factors such as age, nonservice-connected conditions, intercurrent injuries, availability of work, or voluntary withdrawal from the labor market when determining whether a veteran is unemployable solely by reason of service-connected disability. Include sufficient data in the Reasons for Decision of the conclusion. A grant of individual unemployability must 7-II-3 M21-1, Part VI February 9, 2005 Change 123
contain an explanation or analysis that shows how impairment from service-connected disability supports the grant. A conclusory statement alone that the criteria for individual unemployability are met does not satisfy the requirement to state the basis for the grant.
b. Preparation of Ratings
(1) If schedular requirements are met but individual unemployability is denied, the rating must provide an explanation of all pertinent subsidiary determinations. (See 38 CFR 4.16 and 4.18.)
(2) When a veteran is considered unemployable due to nonservice-connected factors, an explanation of the reasons for this decision must be included. In addition, the RVSR must also set forth its reasoning for finding that service-connected disabilities do not cause unemployability without regard to nonservice-connected conditions.
(3) If the veteran is considered employable, the RVSR need only explain the facts which are pertinent to that conclusion.
(4) If schedular requirements are not met, the absence of a basis for extra-schedular submission must be noted. (38 CFR 3.321(b)(1), 4.16(b))
(5) Whenever individual unemployability is granted and permanency is established, the following statement must be included in the rating conclusion: "Basic eligibility under 38 U.S.C. Chapter 35 is established from [date]." This applies regardless of whether or not there appear to be any potential dependents.
7.10 MULTIPLE INJURIES INCURRED IN ACTION OR AS PRISONER OF WAR (POW)
In determinations of entitlement to a total disability rating under 38 CFR 4.16, consider multiple injuries incurred in action as one disability. POW status is a continuation of action against the enemy. Therefore, consider multiple disabilities incurred while a POW, and disabilities incurred in action prior to or subsequent to POW status, as one disability.
7.11 CLAIMS REQUIRING CENTRAL OFFICE APPROVAL
a. Extra-Schedular. Do not hesitate to submit any case to Central Office (211B) for extra-schedular considerations if the evidence of record supports a finding that the veteran is unemployable by reason of service-connected disability but does not meet the schedular requirements of 38 CFR 4.16.
b. Preparation of Memorandum. The memorandum prepared to transmit claims folders to Central Office for review must provide the following:
(1) Clear and succinct statements of fact, including medical and lay evidence of symptoms.
(2) Discussions of facts with relevant laws and regulations.
(3) The issues to be resolved as well as the recommended evaluations.
7.12 CONTROL OF EVALUATIONS BASED ON INDIVIDUAL UNEMPLOYABILITY
a. Failure to Cooperate with Required Field Exam
(1) Prior to reduction to a schedular evaluation based upon failure to cooperate with a required field exam, predetermination notice must also be provided as in subparagraphs d through g above. Prepare a proposed reduction rating using the format in Exhibit A.1. 7-II-4 February 9, 2005 M21-1, Part VI Change 123
(2) If the veteran fails to respond to the predetermination notice, prepare the reduction rating using the format in Exhibit A.2.
(3) If notice is received that the veteran is willing to cooperate with the field exam prior to reduction to the schedular evaluation, action to reduce payments should be deferred. The field exam will be rescheduled and the veteran informed that further failure to cooperate shall be cause for a reduction to the schedular evaluation. Also, the veteran will be informed that the total evaluation based on individual unemployability may not be restored until the field exam has been completed and the report reviewed.
(4) If evidence is subsequently received which warrants restoration of a total rating based on continued unemployability, prepare a rating using the format in Exhibit A.3.
b. Imprisonment. See part IV, subpar. 25.04b(2).
April 29, 2003 M21-1, Part VI Change 103
SUBCHAPTER III. UNEMPLOYABILITY DETERMINATIONS IN PENSION CASES
If the veteran is
• age 65 or older; • a patient in a nursing home for long-term care because of disability; or • disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner (Social Security disability insurance or Supplemental Security Income), then he or she will be presumed to be permanently and totally disabled for pension purposes. (Claimants age 62-65 only must provide a copy of the letter awarding Social Security disability. This is considered an interim procedure until such time VA can acquire the disability evidence through SHARE.) See also Part III, 5.19.
In all the above instances the award should be annotated with the appropriate reason for granting pension. Otherwise, a veteran must be shown by rating to:
• meet the disability percentage requirements set forth in 38 CFR 4.17 or have an extra-schedular evaluation approved under 38 CFR 3.321(b)(2); and • be unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent. The veteran must be either unemployed or marginally employed. It must be kept in mind that "unemployed" is not synonymous with and does not necessarily mean "unemployable." However, the greater the disability, the less the need of other evidence of unemployability. In these instances a rating is required.
a. Percentage Requirements Before December 16, 1991. The "Omnibus Budget Reconciliation Act of 1990," Public Law 101-508, Section 8002, eliminated the statutory presumption of permanent and total disability for pension at age 65 for all claims filed after October 31, 1990. This statutory presumption has since been restored effective September 17, 2001 by Public Law 107-103. Title 38 CFR 4.17 was also revised to require for all veterans, regardless of age, a single disability rated 60 percent or a combined evaluation of 70 percent, with one disability ratable at 40 percent or higher. These rating requirements are effective for all claims filed after December 15, 1991. After September 17, 2001 these percentages apply only to veterans under age 65. For claims filed after October 31, 1990, and before December 16, 1991, the percentage disability requirements are 60 percent for one or more disabilities for veterans age 55 through 59 and 50 percent for veterans who were at least age 60.
b. Entitlement Interrupted. If pension has been terminated previously due to the veteran's wage income having exceeded marginal employment, the pension claim must be rated using the rating criteria in effect at the time the claim is reopened. In all other cases, no new rating is required. (See the poverty threshold as defined in Addendum A - Poverty Threshold—see the VBA website at http://vbaw.vba.va.gov/bl/21/Publicat/Manuals/Part6/povlvl.htm.)
c. 38 CFR 3.321(b)(2). Consider entitlement under 38 CFR 3.321(b)(2) in all cases in which the veteran does not meet the schedular requirements for pension. The rating must state that consideration was given and, if denied, must indicate the reason. The letter informing the veteran of the pension denial must also inform him or her of the reason pension was not granted under that provision. (See par. 3.06c. and 3.10g.)
d. Retroactive Entitlement. If entitlement to pension is established from a date subsequent to the date of claim, consider whether retroactive entitlement may be established under 38 CFR 3.321(b)(2). If retroactive entitlement under 38 CFR 3.321(b)(2) is not in order, provide an explanation in the reasons and bases section of the rating.
M21-1, Part VI April 29, 2003 Change 103
a. Ability To Secure Employment. Unemployability is established if the evidence shows inability to secure and retain substantially gainful employment by reason of disability as well as related factors. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. "To secure employment" involves the consideration of the attempts made by the veteran to obtain work of the type the veteran is capable of performing in the area of residence. The kind and sufficiency of evidence needed to establish reasonable efforts to secure employment will vary with the facts of the individual case. In many instances, the veteran's unsupported statement will suffice if it is consistent with the other facts of the case including such considerations as a good work record. In others, evidence will be required from past and prospective employers. In this respect, bear in mind some employers may be reluctant to say they have refused to hire an individual because of age, or age and disability combined.
b. Ability To Retain Employment. The "ability to retain employment" once it is secured is a necessary element of employability and envisages sustained performance as contrasted with temporary or sporadic work.
c. Employment in Household Duties. A veteran whose sole employment consists of performance of household duties may qualify as unemployable if the veteran is no longer able to perform the principal household duties without substantial help.
d. Nonprogression of Disability. The fact that the veteran's records show that, prior to discontinuance of employment, there was full-time work with about the same degree of disability as presently exists is not in itself a proper basis for holding the veteran employable. Moderate progression of disabling conditions considered with advancing age may compel termination of employment by a person who had been working despite disability.
e. Mandatory Retirement. Do not use the forced discontinuance of work upon reaching mandatory retirement age (or optional retirement in many cases) as the sole reason for regarding the veteran to be unemployable. Rather, the determinative factors are whether the veteran's disability and age prevent the veteran from obtaining another position. Steady employment over a long period is ordinarily an indication of the veteran's desire to work.
f. Character and Behavior Disorders. A permanent total disability pension rating may be authorized for a congenital, developmental, hereditary or familial condition. If a veteran has one of these conditions that is less than totally disabling, the veteran may still be unemployable on account of such a disability and a finding of unemployability would be in order.
g. Unemployment Resulting From Offenses Against Society. If a personality disorder is manifested by behavior offensive to society and the offense against society results in imprisonment or custodial care, it is this offense, rather than the individual's disability, which removes the individual from the labor market. There is no basis for a finding of unemployability. This would apply, for example, if a veteran with a disability of sociopathic personality disturbance with sexual deviation is committed for acts of a criminal sexual psychopath. The reason for unemployment is the removal of the individual from a work-possible environment for an offense against society, rather than because of disability.
h. Unemployability Decisions. Both the degree of disability and the veteran's age are determinative factors as to unemployability. Consider age, education, occupational background and other related factors in pension claims. If basic eligibility is present, do not hesitate to apply 38 CFR 3.321(b)(2) if disability percentage standards are not met.
(1) Exercise restraint in discontinuing eligibility to pension benefits by reason of regained employability to newly employed veterans already on the rolls. Income limitations are adequate to control both Improved
October 15, 2002 M21-1, Part VI Change 97
Pension and Section 306 claims.
(2) If benefits have been discontinued for an extended period based on excessive income from earnings, a redetermination of unemployability is required on a factual basis.
i. Effective Dates for Pension Awards. For claims received after September 30, 1984, the effective date of an original or reopened award of disability pension is the date VA received the claim. The award may be retroactive for up to a period of 1 year before the date of claim (but not earlier than the date of permanent and total disability) if the following conditions are met:
(1) The veteran files a claim for a retroactive award within 1 year from the date the veteran became permanently and totally disabled;
(2) The veteran was prevented by a disability, not of misconduct origin and not necessarily the disability upon which the permanent and total disability status is based, from applying for pension; and
(3) The disability prevented the veteran from filing the pension claim from the date of permanent and total disability for a period of at least 30 consecutive days.
j. Criteria for Grant of Retroactive Award of Disability Pension. Generally, VA will not invite a claim to establish entitlement to a retroactive payment of disability pension. The instructions for VA Form 21-526, "Veteran's Application for Compensation or Pension," advise the veteran that a claim for disability pension is considered a claim for retroactive payment only if so indicated on the application. However, if the veteran has not requested consideration for retroactive payment, and the rating specialist determines that a qualifying disability may exist, the rating specialist shall request authorization to advise the claimant that retroactive benefits may be payable. Do not establish a pending control in this event.
(1) Qualifying Disability for Retroactive Pension Award. The claimed disability must be so incapacitating that it is reasonable to conclude that it did in fact prevent the veteran from filing an application for pension. A disability will meet this requirement when it is so severe as to normally necessitate hospitalization and require intensive treatment. Examples of this type of disability would be a severe heart attack, cardiovascular accident or a critical injury of an incapacitating nature requiring intensive care and/or treatment. The disability must prevent the veteran from filing from the date the veteran first became permanently and totally disabled and must continue for a period of at least 30 consecutive days. However, the qualifying disability does not have to continue for the entire retroactive period.
(2) Requirement for Rating Decision. In disability pension claims, the issue of a retroactive effective date will be disposed of by a rating decision. Do not delay granting pension benefits from the date of receipt of the claim when the veteran is permanently and totally disabled but the issue of retroactive payment cannot be immediately resolved.
(a) If claimed with the application for pension and the evidence is sufficient to evaluate for qualifying disability, dispose of the issue with the disability rating granting or denying permanent and total disability; or
(b) If claimed after commencement of pension payments, prepare a separate disability rating disposing of the issue.
7.15 MARGINAL EMPLOYMENT
a. Definition. Marginal employment exists if, by reason of age and disability, the veteran works less than one-half the usual hours or receives less than one-half the prevailing community wage for the particular occupation. To qualify as marginal employment under 38 CFR 4.17(a), either of the criteria will suffice.
M21-1, Part VI October 15, 2002 Change 97
b. Marginal Occupations. In many areas there are jobs available where the pay is too low to attract the able-bodied and which, therefore, must be filled by older and disabled persons. However, they do require the employees to be present for a full workweek, and the pay is the same for the particular occupation throughout the community. These jobs are generally sedentary. Many of the jobs are of the type that will qualify under 38 CFR 3.342(b)(4). The employment contemplated by this regulation is in jobs set up by local custom or practice as positions to be filled by the aged or the disabled.
c. Factors for Consideration. Factors pertinent to the issue of marginal employment include the following, but no single element should in itself be regarded as determinative:
(1) Prior work history and earnings compared with the present may have a relationship to and be evidence of the extent of the veteran's disability. A marked reduction of earnings may be indicative of a comparable decrease in mental or physical capabilities.
(2) The established wage for a particular type of job in the community.
(3) Opportunity for employment in the community.
(4) The type of disability in relation to the work for which the veteran is qualified by experience, education and training.
7.16 FACTORS RELATING TO UNEMPLOYABILITY OR MARGINAL EMPLOYMENT OF FARMERS
a. The Size of Farms and Income Derived. In computing the net return from a farm operation when members of the veteran's family make substantial contribution of labor without pay, deduct the reasonable value of such labor from the total income in order to arrive at a true figure of the net remuneration resulting from the veteran's own contribution of labor or supervision. This method of computation is for unemployability purposes only and is not to be used in determining annual income.
(1) Many farm operations are so small and the income so meager that, even though the disabled veteran is doing all of the work required, the veteran might be considered as marginally employed. Do not base a denial solely on the fact this type of farmer never operated a farm on a large scale.
(2) Consider if before the veteran became disabled there was supplementation of farm income by working as a hired laborer for others, and if because of physical impairment such source of income is no longer available.
b. Type of Work Performed. Consider light chores versus heavy farm labor and seasonal labor as compared to year-round work. Higher degrees of disability obviously limit the scope of farm work that may be performed.
c. Past Work History. Consider if the veteran was required by age or disability to make a change from some other type of full-time employment to a marginal farming operation.
d. Prevailing Income and Hours of Work. If necessary, compare income and hours of work with other farmers in the area engaged in comparable operations. Use the local county agricultural representative as a source of information on this question in doubtful cases.
e. Supervision. Consider this type of activity as evidence of employability only when the farm operation is large enough to warrant a full-time supervisor.
October 15, 2002 M21-1, Part VI Change 97 7.17 UNEMPLOYMENT DUE TO LOSS OF INDUSTRY IN THE COMMUNITY
The fact that an industry closes or is removed from the community where the veteran resides, thereby resulting in the loss of the veteran's job, is a factor for consideration and may have a bearing on whether the veteran's disability prevents further employment. It should not be used as the sole basis for a finding of either employability or unemployability. Inability to compete in the labor market because of age or disability is a valid basis for a finding of unemployability even though the veteran did not actually become unemployed because of a particular disability.
7.18 RATING PRACTICES AND PROCEDURES
a. Social Security Disability Records. If available evidence is insufficient to award pension benefits and the record shows that the veteran is receiving Social Security benefits because of disability, complete copies of the SSA records must be obtained and considered. (See pt. III, par. 9.01.)
b. Concurrent Requests for Evidence. If evidence of unemployability is required, request it concurrently with the request for examination. The "greater the disability the less evidence of unemployability" rule will be applied, so as to avoid unnecessary development. Exercise special care in rating claims in which the decision rests solely on a finding of employability. Ensure the evidence on which the grant or denial is based is set out in detail and, when applicable, the reasons and bases section of the rating contains the rating specialist's reasoning.
c. Determinations of Permanence of Total Disability. The permanence of total disability shall be established as of the earliest date consistent with the evidence in the claim (38 CFR 3.342(b)(2)). The regulation also requires a finding of permanence after 6 months hospitalization without improvement in tuberculosis and other disabilities requiring hospitalization for indefinite periods. Consider the 6-month period a maximum, rather than a minimum, waiting period. An earlier date, consistent with the facts, is always preferable. The judgment of the rating specialist, in determining the reasonable probability of permanence of total disability, should be free of restricting artificial criteria. Consider each claim based on its own unique facts and circumstances.
d. Anticipation of Residuals. If a veteran suffers a heart attack, stroke or accident, etc., the anticipated permanent residuals may generally be evaluated from the degree of recovery shown within a comparatively short time after the occurrence, with due consideration being given to the veteran's age, educational level, occupational background and prior physical condition. Do not defer action until the residual disability can be established with absolute certainty. If permanent total disability is anticipated, but not definitely established, prepare a favorable rating decision and schedule a future review examination.
e. Rating Day Hospitalization Cases. The Day Hospital program is a posthospital care or outpatient program which provides veterans with a brief, but very intensive psychiatric regimen. Since there are prospects of recovery under intensive treatment, exercise care in establishing permanent and total disability for pension entitlement based solely on a period of day hospitalization.
February 5, 2004 M21-1, Part VI Change 110
SUBCHAPTER IV. ENVIRONMENTAL HAZARDS
7.19 RECONSIDERATION OF PREVIOUSLY DENIED CLAIMS BASED ON EXPOSURE TO IONIZING RADIATION DURING OCCUPATION OF HIROSHIMA OR NAGASAKI OR IN NUCLEAR TESTING
Veterans whose claims for service connection based upon exposure to ionizing radiation as a consequence of service with the occupation forces of Hiroshima or Nagasaki, Japan, or in connection with nuclear testing were denied prior to October 24, 1984, are entitled to a de novo review (a complete, new review) of their claims under Public Law 98-542, the "Veterans' Dioxin and Radiation Exposure Compensation Standards Act," which was enacted on October 24, 1984. New and material evidence need not be submitted to reopen these claims.
7.20 PRESUMPTIVE DISEASES ASSOCIATED WITH EXPOSURE TO HERBICIDE AGENTS
a. Herbicide Agents. "Herbicide agent" means a chemical used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant, TCDD; cacodylic acid; and picloram. (38 CFR 3.307(a)(6)(i))
b. Exposure. Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent. The last date of exposure is the last date on which he or she served in the Republic of Vietnam during the Vietnam era (38 CFR 3.307((a)(6)(iii)). Any exposure to herbicide agents in circumstances other than Vietnam service must be established on a factual basis.
c. Presumptive Diseases
(1) Requirements for Service Connection. In order to establish presumptive service connection, all diseases listed in 3.309(e) must become manifest to a degree of 10 percent or more after exposure. Chloracne (or other acneiform disease consistent with chloracne), porphyria cutanea tarda, and acute and subacute peripheral neuropathy must fulfill the 10 percent requirement within a year of last exposure to herbicides. Previously, respiratory cancers (cancers of the lung, bronchus, larynx, trachea) had to become manifest within 30 years of last exposure. Public Law 107-103 eliminated this requirement effective January 1, 2002. There is no time limit for the other listed diseases. (38 CFR 3.307((a)(6)(ii))
NOTE: The requirements for presumptive service connection do not preclude consideration of direct service connection when medical nexus has been provided. See 38 CFR 3.303(d).
(2) Acute and Subacute Peripheral Neuropathy. When processing claims for service connection for acute and subacute peripheral neuropathy based on herbicide exposure, it is important to remember that "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appeared within one year of last exposure to an herbicide agent and resolved within two years of the date of onset. It does not include chronic peripheral neuropathy. A "zero percent" evaluation should not be assigned based on a history of acute and subacute peripheral neuropathy that manifested within one year of last exposure and resolved within two years of the date of onset. Absent proof of a present disability there can be no valid claim (see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). Because any acute or subacute peripheral neuropathy will, by definition, resolve within a short time after exposure, any later-occurring peripheral neuropathy, whether transient or chronic, will not be presumed to be related to the prior herbicide exposure or the previously-resolved acute or subacute peripheral neuropathy. Claims of service connection for such later-occurring peripheral neuropathy should be evaluated under the ordinary standards governing direct service connection.
M21-1, Part VI February 5, 2004 Change 110
(3) Dates of Entitlement. The diseases listed in 38 CFR 3.309(e) were made subject to presumptive service connection on the dates shown below:
Effective Date Disability
February 6, 1991* and *** Chloracne or other acneform disease consistent with chloracne
February 6, 1991* Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)
February 6, 1991** Non-Hodgkin’s lymphoma
February 3, 1994 Porphyria cutanea tarda, Hodgkin's disease
June 9, 1994 Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), multiple myeloma
November 7, 1996 Prostate cancer, acute and subacute peripheral neuropathy
May 8, 2001 Diabetes mellitus (Type 2)
October 16, 2003*** Chronic lymphocytic leukemia
Unless an earlier effective date is determined pursuant to the Nehmer Stipulation, the provisions pertaining to retroactive payment under 38 CFR 3.114(a) apply.
* originally September 25, 1985 under section 3.311a ** originally August 5, 1964 under section 3.313 *** not subject to the provisions of 38 CFR 3.816 (See 7.20d.)
(4) Conditions for which the Secretary has determined there is no positive association with herbicide exposure. Under the Agent Orange Act of 1991, the Secretary receives periodic reviews and summaries of the scientific evidence concerning the association between exposure to herbicides and diseases suspected to be associated with those exposures from the National Academy of Sciences (NAS). To the extent possible, NAS determines: (1) whether there is a statistical association between specific diseases and herbicide exposure; (2) the increased risk of disease among individuals exposed to herbicides in the Republic of Vietnam during the Vietnam Era; and (3) whether there is a plausible biological mechanism or other evidence that herbicide exposure causes specific diseases. Based on cumulative scientific data reported by NAS since 1993, the Secretary has determined that there is no positive association (i.e., the evidence for an association does not equal or outweigh the evidence against an association) between herbicide exposure and the following conditions:
• hepatobiliary cancers • nasal and nasopharyngeal cancer • bone cancers • breast cancer • cancers of the female reproductive system • urinary bladder cancer • renal cancer • testicular cancer • leukemia (other than chronic lymphocytic leukemia) • reproductive effects (abnormal sperm parameters and infertility) • Parkinson's disease 7-IV-2 February 5, 2004 M21-1, Part VI Change 110
• chronic persistent peripheral neuropathy • lipid and lipoprotein disorders • gastrointestinal and digestive disease (other than diabetes mellitus) • immune system disorders • circulatory disorders • respiratory disorders (other than certain respiratory cancers) • skin cancer • cognitive and neuropsychiatric effects • gastrointestinal tract tumors • brain tumors • amyloidosis
d. The Nehmer Stipulation (38 CFR 3.816)
(1) Background. Title 38 CFR 3.311a, which became effective on September 25, 1985, was the first VA regulation to provide guidance for the adjudication of claims based on dioxin exposure. In February 1987, a class action entitled Nehmer v. United States Veterans Administration, et al. was filed in the United States District Court for the Northern District of California. On May 3, 1989, the district court invalidated a portion of 38 CFR 3.311a. All denials on or after September 25, 1985 based on that regulation were voided, and a moratorium was placed on further denials. The moratorium was lifted on February 15, 1994. Effective September 24, 2003, 38 CFR 3.816 was added to provide guidance for awarding disability compensation and DIC benefits under the Nehmer litigation.
(2) Nehmer Class Members. Nehmer class members under 38 CFR 3.816 include a veteran who served in the Republic of Vietnam during the Vietnam era who has a covered herbicide disease, and the surviving spouse, child, or parent of a deceased veteran who served in the Republic of Vietnam during the Vietnam era and died from a covered herbicide disease.
(3) Covered Herbicide Disease. “Covered herbicide disease” under 38 CFR 3.816 means a disease for which VA has established a presumption of service connection before October 1, 2002 under the Agent Orange Act of 1991, other than chloracne. These diseases are
• Type 2 Diabetes (also known as type II diabetes mellitus or adult-onset diabetes) • Hodgkin’s disease • Multiple myeloma • Non-Hodgkin’s lymphoma • Acute and Subacute peripheral neuropathy • Porphyria cutanea tarda • Prostate cancer • Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and • Soft-tissue sarcoma (as defined in 38 CFR 3.309(c)).
(4) Entitlement to Benefits. A Nehmer class member is entitled to disability compensation or DIC benefits under 38 CFR 3.816 if a claim for service-connected disability or death from a covered herbicide disease was (1) denied in a decision issued between September 25, 1985 and May 3, 1989, (2) pending on May 3, 1989 or, (3) received between May 3, 1989 and the effective date of the regulation establishing a presumption of service connection for the covered disease.
Note: Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease.
(5) Effective Date. The effective date of compensation benefits under 38 CFR 3.816 is the date of receipt of the claim on which the prior denial was based or the date on which the disability arose, whichever is
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later. The effective date of an award of DIC benefits under 38 CFR 3.816 is the later of the date of receipt of the prior claim or the date of the veteran’s death.
Exceptions: If VA received the prior claim for compensation within one year after the veteran’s separation from service, the effective date of compensation is governed by 38 CFR 3.400(b)(2). If the prior claim for DIC was received within one year after the veteran’s death, the effective date of DIC is governed by 38 CFR 3.400(c).
Note: The provisions of 38 CFR 3.114(a) limiting effective dates to no earlier than the date of a liberalizing law or issue do not apply to benefits awarded under 38 CFR 3.816.
Example 1: The veteran’s initial claim for lung cancer was received on August 4, 1985 and denied on November 19, 1985. Medical evidence showed a diagnosis of lung cancer in July 1985. In this case, the date of entitlement to benefits under 38 CFR 3.816 would be from the date of claim, August 4, 1985. If the claim had been denied prior to September 25, 1985, it would be unaffected by the Nehmer Stipulation, and the effective date would be governed by 38 CFR 3.114(a).
Example 2: The veteran’s initial claim for service connection for lung cancer was received on October 14, 1992 and denied on December 23, 1992. Medical evidence showed a diagnosis of lung cancer in September 1992. Since the claim was received before June 9, 1994, the effective date of the presumption of service connection for lung cancer under 38 CFR 3.309(e), compensation benefits under 38 CFR 3.816 may be awarded from the date of claim, October 14, 1992.
Example 3: On November 3, 1986, a veteran with Vietnam service died from Hodgkin's disease. His widow filed a claim for DIC on December 10, 1986, alleging that his death was related to Agent Orange exposure. On February 12, 1987, entitlement to DIC benefits was denied. The effective date for an award of DIC benefits would now be determined with reference to the date of claim, December 10, 1986. Since, in this case, the date of claim is within one year of the veteran's death, the date of eligibility would be the first day of the month in which the veteran's death occurred as required by 38 CFR 3.400(c)(2).
(6) Scope of Retroactive Payment Provisions
(a) No Requirement of a Claim That Specifically Mentions Herbicide Exposure. In its February 11, 1999 order the district court held that a Nehmer class member’s compensation or DIC claim need only have requested service connection for the condition in question to qualify as a Nehmer claim. It is not necessary that the claim have asserted that the condition was caused by herbicide exposure.
Example: A veteran with Vietnam service filed a claim in 1994, expressly alleging that his prostate cancer was caused by exposure to ionizing radiation in service prior to his service in Vietnam. VA denied the claim in 1995. The veteran reopened the claim in 1997, and service connection was granted. On these facts, the effective date must relate back to the 1994 claim, even though the veteran alleged a different basis for service connection.
(b) Porphyria Cutanea Tarda (PCT). Title 38 CFR 3.311a(d), which was published on October 21, 1991, stated that sound scientific and medical evidence did not establish a significant statistical association between herbicide exposure and PCT. A denial of PCT under 38 CFR 3.311a after October 20, 1991, was valid and an earlier effective date for benefits would not be assigned under 38 CFR 3.816. However, a claim for PCT which was denied between September 24, 1985, and October 21, 1991, would be considered for an earlier effective date under 38 CFR 3.816.
(c) Type 2 Diabetes Mellitus. Effective May 8, 2001, Type 2 diabetes mellitus became subject to presumptive service connection under 38 CFR 3.309(e). Retroactive benefits under the Nehmer review may be warranted for claims for service connection for Type 2 diabetes filed or denied during the period from September 25, 1985 to May 7, 2001. If a prior claim did not involve service connection for Type 2 diabetes, it generally would not provide a basis for an earlier effective date. However, a lack of specificity in the initial claim may be clarified by later submissions. 7-IV-4
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Example 1: In January 1987, a veteran claimed compensation for hyperglycemia. In developing the claim, VA obtained medical records indicating that the veteran was diagnosed with Type 2 diabetes in February 1987. On these facts, it would be reasonable to treat the January 1987 claim as a claim for service connection of Type 2 diabetes. Under 38 CFR 3.816, benefits may be paid retroactive to the later of the date of that claim or the date the disability arose, as determined by the facts of the case.
Example 2: In 1995, a veteran claimed compensation for hyperglycemia. Medical records obtained by VA indicated the veteran did not have Type 2 diabetes. In 2001, the veteran claimed compensation for Type 2 diabetes, submitting evidence showing that the condition was diagnosed in 1996. On these facts, the 1995 claim was not a claim for service connection of Type 2 diabetes, as neither the application nor the evidence of record suggested the presence of Type 2 diabetes.
(d) Payment to the Survivors or Estate of a Nehmer Class Member
1. Identifying Appropriate Payee. If a Nehmer class member entitled under 38 CFR 3.816(c) and (d) dies before receiving the payment of retroactive benefits, award the unpaid benefits to the first individual or entity in existence in the following order: spouse; child or children (divided into equal shares, if more than one child exists), regardless of age or marital status; parents (divided in half, if both parents are alive); estate.
Note 1: The survivor or estate of a Nehmer class member is not required to file an application in order to receive the unpaid benefits.
Note 2: The provisions of 38 U.S.C. 5121(a) limiting payment of accrued benefits to amounts paid and due for a period not to exceed two years prior do not apply to payments under 38 CFR 3.816.
2. If Appropriate Payee Cannot Be Identified. If a class member is deceased and the claims file does not clearly identify an eligible survivor, use all available information in the file to determine an appropriate payee. For example, if the claims file identifies an authorized representative or relative, this person should be contacted for information on the existence of a surviving spouse, children, parents, or estate. If this development does not identify an appropriate payee, annotate the rating decision that it was not possible to locate any payee eligible for Nehmer payment.
3. Developing for Other Survivors. Before awarding benefits to an identified payee, ask the payee to state whether there are any other survivors of the class member who may have an equal or greater entitlement to payment under 38 CFR 3.816, unless the circumstances clearly indicate that such a request is unnecessary. If, after the claim is developed, the full amount of benefits is awarded to a payee, do not pay any portion of the amount to any other individual, unless the payment previously released can be recovered.
7.21 ASBESTOS-RELATED DISEASES
(1) Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure.
(2) Asbestos, a fibrous form of silicate mineral of varied chemical composition and physical configuration, derives from serpentine and amphibole ore bodies. The asbestos fibers are obtained from these minerals after the rocks have been crushed. Africa has been the source of large quantities of crocidolite and amosite. The main asbestos product now used in the United States is chrysotile which consists of varied mixtures of chrysotile, tremolite, actinolite, and anthophyllite fibers. The biological actions of these fibers differ 7-IV-5
M21-1, Part VI February 5, 2004 Change 110
in some respects. Chrysotile products have their initial effects on the small airways of the lung, cause asbestosis more slowly, but result in lung cancer more often. The African fibers have more initial effects on the small blood vessels of the lung, the alveolar walls and the pleura, and result in more mesothelioma. True chrysotile fibers are hollow and extremely thin. All the other varieties of asbestos fibers are solid.
(3) Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Mesotheliomas are not associated with cigarette smoking. Lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. About 50 percent of persons with asbestosis eventually develop lung cancer, about 17 percent develop mesothelioma, and about 10 percent develop gastrointestinal and urogenital cancers.
All persons with significant asbestosis develop cor pulmonale and those who do not die from cancer often die from heart failure secondary to cor pulmonale.
b. Occupational Exposure
(1) Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced.
(2) High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease).
c. Diagnosis. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident.
(1) When considering VA compensation claims, RVSRs must determine whether or not military records demonstrate evidence of asbestos exposure in service. RVSRs must also assure that development is accomplished to determine whether or not there is preservice and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. If assistance is needed, contact the Compensation and Pension Service Regulations Staff.
(2) Rate asbestosis under diagnostic code 6833 and pleural effusions and fibrosis, and pleural plaques analogous to asbestosis. Rate cancers under the diagnostic code for the appropriate body system. Rate mesothelioma of pleura analogous to diagnostic code 6819 and mesothelioma of peritoneum analogous to diagnostic code 7343.
July 30, 2004 M21-1, Part VI Change 116
7.22 COMPENSATION FOR DISABILITIES ASSOCIATED WITH GULF WAR SERVICE
a. Background. (1) The Persian Gulf War Veterans’ Act. On November 2, 1994, Congress enacted the "Persian Gulf War Veterans' Benefits Act," Title I of the "Veterans' Benefits Improvements Act of 1994," Public Law 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War.
(2) The Persian Gulf War Veterans Act of 1998. The “Persian Gulf War Veterans Act of 1998”, Public Law 105-277 authorized VA to compensate Gulf War veterans for diagnosed or undiagnosed disabilities which are determined by VA regulation to warrant a presumption of service-connection based on a positive association with exposure to a toxic agent, environmental or wartime hazard, or preventive medication or vaccine associated with Gulf War service. This statute added section 1118 to Title 38, United States Code.
(3) The Veterans Education and Benefits Expansion Act of 2001. The “Veterans Education and Benefits Expansion Act of 2001,” Public Law 107-103, expanded the definition of “qualifying chronic disability” under 38 U.S.C 1117 to include, effective March 1, 2002, not only a disability resulting from an undiagnosed illness, but also a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs and symptoms, and any diagnosed illness that is determined by VA regulation to warrant a presumption of service-connection.
(4) 38 CFR 3.317. Title 38 CFR 3.317, which implements 38 U.S.C. 1117, defines qualifying Gulf War service and qualifying chronic disability as well as establishes a broad but non-exclusive list of signs and symptoms which may be representative of undiagnosed or chronic multi-symptom illnesses for which compensation may be paid, and the presumptive period for service connection.
b. “Gulf War Veteran”. The term "Gulf War veteran" under 38 CFR 3.317 means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Gulf War. The Gulf War extends from August 2, 1990, through a date yet to be determined by law or Presidential proclamation (38 U.S.C. 101(33). The Southwest Asia theater of operations includes:
Iraq Kuwait Saudi Arabia The neutral zone between Iraq and Saudi Arabia The United Arab Emirates Bahrain Qatar Oman The Gulf of Aden The Gulf of Oman The Persian Gulf The Arabian Sea The Red Sea The airspace above these locations
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c. Qualifying Chronic Disability
(1) Definition. The term “qualifying chronic disability” under 38 CFR 3.317 means a chronic disability resulting from any of the following (or any combination of any of the following):
(a) An undiagnosed illness.
(b) A medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms.
(c) Any diagnosed illness that is determined by VA regulation to warrant a presumption of service-connection.
(2) Signs or Symptoms of Illness. Title 38 CFR 3.317 specifies 13 categories of signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness. They are listed below. However, the list of 13 illness categories is not exclusive. Signs or symptoms not represented by one of the listed categories can also qualify for consideration. If a disability is affirmatively shown to have resulted from a cause other than Gulf War service, however, it cannot be compensated under 38 CFR 3.317.
Abnormal weight loss Cardiovascular signs or symptoms Fatigue Gastrointestinal signs or symptoms Headache Joint pain Menstrual disorders Muscle pain Neurological signs or symptoms Neuropsychological signs or symptoms Signs or symptoms involving the respiratory system (upper and lower) Signs and symptoms involving the skin Sleep disturbances
(3) Chronicity. The claimed illness must be chronic. To fulfill the requirement for chronicity, the claimed illness must have persisted for a period of 6 months. Disabilities which are subject to intermittent episodes of improvement and worsening within a 6-month period would be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first became manifest.
d. Presumptive period for service connection. Title 38 CFR 3.317 establishes the presumptive period as beginning on the date following last performance of active military, naval, or air service in the Southwest Asia theater during the Gulf War. This period extends through September 30, 2011.
e. Special Considerations for Undiagnosed Disability Claims
(1) Diagnostic Codes. In order to properly identify and track claimed undiagnosed disabilities, the following diagnostic code series beginning with "88" has been established. The 88 code will be the first element of a hyphenated analogous code. It will be assigned according to the body system of the analogous code which it precedes. (See subparagraph 9b.)
8852-52__ UNDIAGNOSED CONDITION--JOINTS, SKULL, AND RIBS 8853-53__ UNDIAGNOSED CONDITION--MUSCLE INJURIES 8860-60__ UNDIAGNOSED CONDITION--DISEASES OF THE EYE 8861-61__ UNDIAGNOSED CONDITION--HEARING LOSS 8862-62__ UNDIAGNOSED CONDITION--EAR AND OTHER SENSE ORGANS 8863-63__ UNDIAGNOSED CONDITION--SYSTEMIC DISEASES 8865-65__ UNDIAGNOSED CONDITION--NOSE AND THROAT 8866-66__ UNDIAGNOSED CONDITION--TRACHEA AND BRONCHI 8867-67__ UNDIAGNOSED CONDITION--TUBERCULOSIS 8868-68__ UNDIAGNOSED CONDITION--LUNGS AND PLEURA 8870-70__ UNDIAGNOSED CONDITION--HEART DISEASES 8871-71__ UNDIAGNOSED CONDITION--ARTERIES AND VEINS 8872-72__ UNDIAGNOSED CONDITION--UPPER DIGESTIVE SYSTEM 8873-73__ UNDIAGNOSED CONDITION--LOWER DIGESTIVE SYSTEM 8875-75__ UNDIAGNOSED CONDITION--GENITOURINARY SYSTEM 8876-76__ UNDIAGNOSED CONDITION--GYNECOLOGICAL SYSTEM 8877-77__ UNDIAGNOSED CONDITION--HEMIC AND LYMPHATIC SYSTEM 8878-78__ UNDIAGNOSED CONDITION--SKIN 8879-79__ UNDIAGNOSED CONDITION--ENDOCRINE SYSTEM 8880-80__ UNDIAGNOSED CONDITION--CENTRAL NERVOUS SYSTEM 8881-81__ UNDIAGNOSED CONDITION--MISCELLANEOUS NEUROLOGICAL 8882-82__ UNDIAGNOSED CONDITION--CRANIAL NERVE PARALYSIS 8883-83__ UNDIAGNOSED CONDITION--CRANIAL NERVE NEURITIS 8884-84__ UNDIAGNOSED CONDITION--CRANIAL NERVE NEURALGIA 8885-85__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE PARALYSIS 8886-86__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE NEURITIS 8887-87__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE NEURALGIA 8889-89__ UNDIAGNOSED CONDITION--EPILEPSIES 8892-92__ UNDIAGNOSED CONDITION--PSYCHOTIC DISORDERS 8893-93__ UNDIAGNOSED CONDITION--ORGANIC MENTAL 8894-94__ UNDIAGNOSED CONDITION--PSYCHONEUROTIC 8895-95__ UNDIAGNOSED CONDITION--PSYCHOPHYSIOLOGIC 8899-99__ UNDIAGNOSED CONDITION--DENTAL AND ORAL
(2) The Issue
(a) Issue for Consideration. State the issue for rating as "Service connection for [specify signs or symptoms] as due to an undiagnosed illness."
(b) Single or Multiple Issues. The decision to rate multiple symptoms or signs separately or as a single disability will depend on the most favorable outcome to the veteran. Although rating multiple manifestations under a single body system will in most cases allow the maximum benefit, be alert to symptoms affecting fundamentally different body systems which may clearly warrant separate consideration. If service connection for several symptoms or signs is denied for the same reason, consider such symptoms and signs as a single issue. Whether granted or denied, assign one hyphenated diagnostic code in the coded conclusion to each issue which is separately considered.
(3) Evidence. If there is a disability due to the existence of an undiagnosed illness, generally there are three facts that must be established before service connection for an undiagnosed illness may be granted or denied: when the disability arose; whether the condition was of compensable severity (unless manifested while in the Southwest Asia theater); and whether the condition chronically persisted for at least six months.
(a) Medical and Lay Evidence. When the object of service connection is a diagnosed illness, medical findings are of paramount importance because a physician specializes in identifying disabilities through
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diagnoses. However, the concept of "objective indications" expressed in 38 CFR 3.317 makes clear that the evidence required for undiagnosed illnesses--illnesses which are outside the scope of medical understanding--is not so dependent on formal medical findings. The veteran's testimony to the effect that he or she is experiencing these symptoms, when combined with an examining physician's inability to make a diagnosis, may be sufficient to establish existence of the illness. Similarly a lay person's statement regarding the veteran's complaints beginning at a certain time, lasting for a certain duration, and having a particular level of severity may be adequate to establish the requirements for consideration. Non-medical indicators include such information as time lost from work, evidence that the veteran has sought medical treatment for his or her symptoms, evidence affirming situations such as a change in the veteran's appearance, physical abilities and mental or emotional attitude. Lay statements from knowledgeable individuals may be accepted as evidence providing objective indications if they support the conclusion that a disability exists.
(b) Unnecessary Development. Lay evidence is credible if the person was in a position to know the alleged facts and if not contradicted by evidence of record which is more credible. Do not dismiss any evidence as "self-serving." It is reasonable to expect claimants to provide evidence which they believe is in their best interests. Similarly, unless there is affirmative reason to doubt the credibility of evidence, do not develop for corroboration. For example, if lay evidence alleges that the veteran lost a certain amount of time from employment, accept that statement without further development if otherwise credible.
(c) PGW Registry Examination. In all cases, ask the veteran if he or she had participated in the VHA Persian Gulf Health Registry and had been examined as part of the Registry, and where he or she was examined. If he or she has been examined, secure examination results from the VAMC.
(4) Future Examination. Because the course of an undiagnosed illness cannot be predicted, monitor the case by establishing a future examination control within 24 months of the last examination of record. At the expiration of the control, review the evidence of record to determine if a reexamination is necessary.
f. Decision. State the rating decision as "Service connection for _____ is denied," or "Service connection for _____ is granted with an evaluation of _____ percent effective _____ ." The earliest effective date for entitlement to service connection under 38 CFR 3.317 is November 2, 1994.
g. Reasons For Decision
(1) Granted. Service connection established under 38 CFR 3.317 is considered service connection for purposes of all laws.
(a) During Active Duty. Service connection will be established if the qualifying chronic disability (as defined in subparagraph 7.22c(1)) became manifest, whether to a compensable degree or not, while the claimant was on active service in the Southwest Asia theater of operations during the Gulf War. Include the following sentence in the "Reasons and Bases" or “Analysis” section of the rating if service connection is established under this circumstance: "Service connection is established for _____ (or for _____ as due to an undiagnosed illness) which began in the Southwest Asia theater of operations during the Gulf War."
(b) During Presumptive Period. Service connection will be established if the qualifying chronic disability arose to a compensable degree after the veteran last served in the Southwest Asia theater during the Gulf War, regardless of the veteran's active duty status at the time. If service connection is established during the presumptive period, include the following statement in the "Reasons and Bases" or “Analysis”: "Service connection may be presumed for qualifying disabilities resulting from undiagnosed or diagnosed illnesses which arose to a compensable degree after service in the Southwest Asia theater of operations during the Gulf War. Service connection for _____ has been granted on the basis of this presumption."
(2) Evaluation by Analogy
(a) Evaluate the level of impairment of chronic undiagnosed disabilities by analogy to an existing diagnostic code in the rating schedule (38 CFR 4.27). Precede a discussion of the evaluation criteria and next 7-IV-10
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higher level in the “Reasons for Decision” with the following statement: "Since the disability at issue does not have its own evaluation criteria assigned in VA regulations, a closely related disease or injury was used for this purpose."
(b) The RSVR will use a hyphenated diagnostic code as described in subparagraph 7.22e(1) for undiagnosed disabilities. For the second code, use the diagnostic code that most closely fits the evaluating criteria. Examples of analogies for the 13 signs or symptoms found in 38 CFR 3.317 are provided below. However, use of analogies is not limited to this list.
Abnormal weight loss, 8873-7328 (resection of intestine); Cardiovascular signs or symptoms, 8870-7013 (tachycardia), 8870-7005 (ASHD); Fatigue, 8863-6354 (chronic fatigue syndrome), 8877-7700 (anemia); Gastrointestinal signs or symptoms, 8873-7305 (ulcer), 8873-7319 (irritable bowel syndrome); Headache, 8881-8100 (migraine headaches); Joint pain, 8850-5002 (rheumatoid arthritis); Menstrual disorders, 8876-7622 (uterus displacement); Muscle pain, 8850-5021 (myositis); Neurologic signs or symptoms, 8885-85__ (peripheral neuropathy); Neuropsychological signs or symptoms, 8893-9300 (organic mental disorder); Signs or symptoms involving the respiratory system (upper or lower), 8865-65__, 8866-66__, 8868-68__ (respiratory system); Signs and symptoms involving the skin, 8878-7806 (eczema); Sleep disturbances, 8894-9400 (generalized anxiety).
(c) Denied. Begin a discussion of any denial in the "Reasons and Bases" or “Analysis” with a description of the general requirements for service connection under 38 CFR 3.317: "Service connection may be established for qualifying chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or a diagnosed illness that is determined by VA regulation to warrant a presumption of service connection which became manifest either during active service in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10 percent or more after the date on which the veteran last performed service in the Southwest Asia theater of operations during the Persian Gulf War."
1. Diagnosed Illnesses. A condition having a known clinical diagnosis cannot be favorably considered for service connection under 38 CFR 3.317 unless it meets the criteria for qualifying chronic disability shown in subparagraph 7.22c, but it will receive consideration for service connection under other provisions. If service connection is denied, include the following language in the "Reasons and Bases" or “Analysis”: "Service connection for _____ is denied because this disability is determined to result from a known clinical diagnosis of _____ , which neither occurred in nor was caused or aggravated by service."
2. Illness Not Chronic. The fact that a claimed disability is not found on last VA examination does not necessarily preclude entitlement under 38 CFR 3.317. The requirement for chronicity is fulfilled if the disability has persisted for at least 6 months. Disabilities subject to episodic improvement and worsening within a 6-month period are considered chronic. If the disability does not meet the 6-month requirement, include the following statement under “Reasons for Decision”: "The disability must have persisted for a period of at least 6 months. Service connection for _____ is denied since this disability was first manifested on _____ and lasted less than 6 months."
3. Attributable to Some Other Etiology. Service connection under 38 CFR 3.317 cannot be established if there is affirmative evidence that the illness was not incurred during active service or was caused by some intercurrent circumstance. Affirmative evidence that the illness is caused by willful misconduct or alcohol or drug abuse will also preclude entitlement. Include the following statement under “Reasons for
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Decision,” if service connection is denied on this basis: "Service connection under this provision is precluded if there is affirmative evidence that the disability was unrelated to service in the Gulf War. Service connection for _____ is denied because evidence established that this disability resulted from _____ ."
4. Illness not shown by the evidence of record. There is no evidence that the condition ever existed.
5. Qualifying Chronic Disability Less than 10 Percent. In order to qualify for service connection, the qualifying chronic disability must have become manifest either during active duty in the Southwest Area Theater during the Gulf War or to a degree of 10 percent or more after the date on which the veteran last performed active service in the Southwest Asia theater of operations during the Gulf War. If the veteran fails to qualify for service connection because the severity of disability is noncompensable, include the following statement in "Reasons and Bases" or “Analysis”: "Service connection for _____ is denied since this disability neither arose during service in the Persian Gulf theater, nor was it manifested to a compensable degree after the last date of service in the Persian Gulf theater during the Gulf War."
(d) Description of Dates. Under “Reasons for Decision,” explicitly refer to any date which is pertinent to the decision. This particularly includes the dates during which the veteran served in the Southwest Asia theater, and the earliest date a qualifying chronic illness may have become manifest.
h. Coded Conclusion
(1) A decision regarding service connection will be shown under either code 1. SC or 8. NSC in the coded conclusion. The parenthetical entry following 1. SC will be "GW PRES."
(2) Hyphenated codes will be used for all undiagnosed conditions. The first code will always be one of the diagnostic codes established for Gulf War undiagnosed conditions (see subparagraph 7.22e(1)) followed by the analogous diagnostic code. For example, if the analogy is 6354, the hyphenated code would be 8863-6354; or if the analogy is 5002, the code would be 8850-5002.
i. Severance and Reduction. Once service connection is established under 38 CFR 3.317, it is considered service connected for the purpose of all laws, including the provisions pertaining to protection under 38 CFR 3.951 and 3.957. Situations may arise, however, that will require termination or reduction of payments previously awarded under section 3.317; for example, establishment of a known clinical diagnosis as the cause of a veteran's disabilities. Title 38 CFR 3.500 was amended to add a paragraph (38 CFR 3.500(y)) specifically requiring severance or reduction under 38 CFR 3.105(d) or (e) to be effective on the first of the month 60 days after expiration of the predetermination period and final notice to the veteran. Apply the usual procedures for reduction or severance outlined in chapter 9. Termination or reduction of benefits paid under section 3.317 would not preclude continuation of payments if entitlement is established under other regulations governing grants of service connection by incurrence, aggravation, or presumption.
j. Participation in Research Projects. Effective December 27, 2001, if a Gulf War veteran participates in a VA-sponsored medical research project, service connection established for disability under 38 U.S.C. 1117 or 1118 will be protected, regardless of the project’s findings, unless the original award of compensation or service connection was based on fraud, or it is clearly shown from military records that the veteran did not have the requisite service or character of discharge. A list of VA-sponsored medical research projects for which service connection is protected will be published in the Federal Register.
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7.23 RATING CLAIMS BASED ON PRISONER OF WAR STATUS
a. POW Rating Veterans Service Representatives. Under the Claims Process Improvement (CPI) model, there is no POW rating board. However, each regional office must designate Rating Veterans Service Representatives (RVSRs) who are specifically responsible for rating POW claims. The Veterans Service Center Manager should select RVSRs who are knowledgeable of issues affecting former POWs and sensitive to the POW experience. If available, the Veterans Service Center Manager should also assign a medical member to rate POW claims.
b. Rating Responsibilities. RVSRs have the primary responsibility to ensure that disability claims made by the former POWs are handled properly. They must exercise the utmost care and compassion in evaluating these claims. All RVSRs rating claims by former prisoners of war are expected to be thoroughly familiar with all laws, regulations, and directives concerning former POWs.
c. Claims Based on POW Experiences. All claims made by former prisoners of war must be adjudicated with constant reference to all sections of the laws, regulations, and directives concerning such claims. Pertinent references include the following: 38 U.S.C. 1112; 38 CFR 3.304(e), 3.307(a)(5), and 3.309(c); and M21-1, part III, paragraphs 5.16, part IV, paragraph 11.06; and part VI, paragraphs 1.02c and 7.05.
(1) The provisions of 38 CFR 3.304(e) give regulatory authority to VA's consistent policy of applying liberally the directives involving grants of service connection in claims made by former prisoners of war. This liberal policy takes into account 2 important factors:
(a) The deficiencies or complete absence of many POWs' service medical records for diseases or injuries suffered during or immediately prior to confinement; and
(b) The extreme hardships and deprivation suffered by POWs during confinement from which physical or mental impairment may not have arisen until many years after confinement.
(2) Adjudicate all disabilities as though the veteran had claimed that they resulted from his or her POW experiences, unless the veteran specifically has stated otherwise. Symptoms presented by the veteran may be the result of the POW experience, or of diseases subject to presumptive service connection, even though the veteran has not alleged a specific disability. For example, the chronic residuals of nutritional deficiency can present themselves in a variety of complaints. Be alert to this possibility and ensure that examinations are complete and comprehensive. Afford the veteran every opportunity to develop a claim. It is inappropriate to make a decision on a claim without sufficient inquiry into all its aspects.
(3) VA must accept the statements of former POWs about the disabilities or diseases incurred during or immediately prior to confinement as proof of service incurrence so long as residual disability is found that can be attributed to the alleged service incident. Therefore, give careful consideration to the statements of the former POWs and to those of former comrades if offered in support. If these statements are inconsistent with other evidence of record, develop with the veteran for clarification of any discrepancies.
(4) RVSRs must always give special attention to a veteran's POW experiences, particularly in reviewing disabilities that are claimed or diagnosed for the first time several years after service. Proper adjudication of a claim demands a close scrutiny of the duration and circumstances of confinement.
(5) No mention of any claimed disabilities need appear in service records and a lack of a history showing continuity or chronicity of the disabilities since military service (although an important factor generally) is not by itself sufficient to deny service connection. Nevertheless, a reasonable basis for service connection must be found upon review of the veteran's POW experiences. The evidence of record must establish a reasonable
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connection between the veteran's current disabilities and his or her experiences while a prisoner of war. Generally, intercurrent diseases or injuries, shown to be the cause of the conditions under consideration, may be accepted as precluding a grant of service connection.
(6) The importance of recent medical evidence that is accurate and complete is paramount. Ensure that a determination is not made on the basis of medical evidence that is old or that is incomplete for the disabilities under consideration. Evidence that is more than 1 year old must be supplemented by a request for a physical examination, but even medical evidence of a more recent date must be examined thoroughly for its adequacy and supplemented when necessary.
(7) Consideration of all claims for service-connected disabilities (particularly disabilities appearing several years after service) requires judgment, careful consideration, and due regard for specific circumstances. If it is unclear whether a condition is a residual of the POW experience, submit the claim to Central Office (211B) for an advisory opinion.
d. Presumptive Service Connection
(1) For former POWs who were confined for at least 30 days, the diseases specified in 38 CFR 3.309(c) must be presumed to be service connected if they become 10 percent or more disabling at any time after service.
(a) The following diseases are included under 38 CFR 3.309(c): avitaminosis, beriberi (including beriberi heart disease), chronic dysentery, helminthiasis, malnutrition (including optic atrophy associated with malnutrition), pellagra, any other nutritional deficiency, psychosis, any of the anxiety states, dysthymic disorder (or depressive neurosis), organic residuals of frostbite, post-traumatic osteoarthritis, irritable bowel syndrome, peptic ulcer disease, peripheral neuropathy (except where directly related to infectious causes), and cirrhosis of the liver.
Exceptions: Certain disabilities do not require that a former prisoner of war be held in captivity for a minimum of 30 days in order to be service connected under the presumptive provisions of the law. These disabilities are: psychosis, any of the anxiety states, dysthymic disorder (or depressive neurosis), organic residuals of frostbite, and post-traumatic arthritis (38 U.S.C. 1112(b)).
(b) Any disabilities which are secondary to any of the conditions listed in 38 CFR 3.309(c) are likewise subject to presumptive service connection.
(c) Since the conditions listed in 38 CFR 3.309(c) are presumptive, a record of the disabilities during service is not a requirement. A denial of service connection for one of these conditions must not be predicated solely upon a deficiency in a veteran's service records. Such a reason may be used only to deny direct service connection. Before denial of presumptive service connection may be made, at least one of the following two conclusions must be supported by the evidence of record:
1. The evidence must positively show that the condition cannot be associated with the veteran's POW experiences (such as if the claimed condition was the result of an intercurrent disease or injury (see 38 CFR 3.307(d))); or
2. The current medical evidence definitely has ruled out a diagnosis of the condition in question.
(d) Service connection must be granted for presumptive conditions if they appear to a degree of 10 percent or more at any time after service (38 CFR 3.307(a)(5); 3.309(c)). The law and regulations do not require a current finding of a 10 percent or greater disability at the time a claim for compensation is filed. If residuals of the claimed condition(s) are noted, even though no compensable evaluation may be warranted,
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consider the possibility that the condition was previously more severely disabling. If so, a grant of service connection with a noncompensable evaluation may be in order.
(2) Anxiety States. The term "anxiety states" is to be given the meaning prescribed under the heading “Anxiety Disorders” in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM – IV), published by the American Psychiatric Association.
(3) Frostbite. A presumption of service connection for the organic residuals of frostbite requires that the former POW had been interned in climatic conditions consistent with the occurrence of frostbite. Frostbite injury, however, can be incurred at different temperatures and after different lengths of exposure, depending on the individual. If a veteran was a POW in seasons other than winter, the possibility of exposure to climatic conditions consistent with permanent frostbite injury must not be eliminated without careful consideration.
(4) Post-Traumatic Osteoarthritis
(a) Due weight must be given to both the veteran's statements of trauma resulting in arthritis and the veteran's medical history so far as it is available. Do not hesitate to develop for clarification of the traumatic incident(s) if it cannot be determined satisfactorily from the evidence at hand whether arthritis due to trauma actually is the issue.
(b) Arthritis due to trauma must be distinguished from the degenerative multiple-joint arthritis that frequently accompanies aging. The appearance of arthritis at an earlier age than would be expected normally or confinement of arthritis to the location of the alleged trauma (regardless of the age at which it appears) might provide a reasonable basis for a grant of service connection.
(c) If a veteran of advanced age with multiple joint arthritis alleges trauma as the cause at all or part of the disease sites, the importance of distinguishing between post-traumatic and degenerative arthritis that is commonly associated with advancing age is obvious. In such situations obtain the most complete account possible of the traumatic incident. Information that should be available for consideration include the nature of the trauma, a statement of the type and severity of the injuries received, and the frequency of traumatic injury (such as how often a POW might have been beaten by his captors).
(d) RVSRs must consider the value of requesting an opinion from the POW physician coordinator as to whether or not a diagnosis of arthritis resulting from trauma would be consistent with the injuries received in the traumatic incident mentioned by the former POW. The physician is not required to give an opinion, but if one is made, it merits serious consideration and cannot be ignored. The rating activity, however, has the final responsibility for determining whether a relationship exists between the arthritis and the veteran's experiences as a prisoner of war. As always, any reasonable doubt arising from the review of the evidence must be resolved in favor of the veteran.
(5) Irritable Bowel Syndrome. This condition normally includes the symptoms noted under diagnostic code 7319, irritable colon syndrome.
(6) Peptic Ulcer Disease. This term has been found not to be sufficiently specific for rating purposes (Schedule for Rating Disabilities, paragraph 110). Therefore, a broad interpretation of the statute has been adopted, and a liberal standard of consideration must be applied. Service connection may be granted for those conditions independently ratable under diagnostic codes 7304 through 7306, 7308 or 7348. The appropriate diagnostic code must be used to identify the location of the ulcer or residual disability.
(7) Peripheral Neuropathy. The presumptive conditions include peripheral neuropathy, except for peripheral neuropathy that is related directly to infectious causes. RVSRs must ensure that the last two digits of the diagnostic codes used (diagnostic codes 8510 through 8730) correspond to the actual nerve involved.
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In addition, take care that the second digit of the diagnostic code (5, 6 or 7) accurately reflects the symptomatology shown (paralysis, sensory deficits, or pain).
(a) The law does not require a disallowance of presumptive service connection for peripheral neuropathy due to infectious causes unless the evidence establishes that the infectious agent was an intercurrent cause of peripheral neuropathy or unless a review of the circumstances of internment definitely rules out incurrence of the infectious cause during confinement.
(b) The possibility of nutritional deficiency during internment and resultant lowering of the body's resistance to infection must be considered. Medical evidence must also establish a current diagnosis of peripheral neuropathy.
(8) Beriberi Heart Disease. The term "beriberi heart disease" includes ischemic heart disease in a former prisoner of war who had experienced localized edema during captivity (38 CFR 3.309(c)).
e. POW Protocol. (See subpar. 1.02c.)
f. Preparation of Ratings
(1) Issue(s). The disabilities alleged to have been incurred or aggravated during the veteran's period of confinement must be cited apart from other claimed disabilities. If all disabilities are alleged to have been incurred or aggravated as part of the POW experience, the issue may be stated as "Disabilities Incurred or Aggravated as a Result of Confinement as a POW" with the specific disabilities listed by number.
(2) Reasons and Bases
(a) Ratings must contain all available data pertinent to POW status, such as the dates of confinement and the name(s) of specific camp(s) or sector(s) in which the veteran was confined. This portion of the rating must also contain a statement as to whether or not the claimant was examined under the POW protocol. See subparagraph 1.02c.
(b) The reasons and bases section of the rating must also include a statement of the availability and adequacy of service medical records concerning the claimed condition(s) and should indicate that available secondary evidence (such as statements of the veteran's camp comrades during internment) has been considered thoroughly. This portion of the narrative must explain fully the reasons for granting or denying service connection and the rationale supporting any disability evaluations assigned. The explanations must be phrased clearly and must cite the appropriate authority upon which a decision has been based. The statements used in the rating decision will serve as the bases for award or disallowance actions and therefore must be easily understood by claimants since the rating narrative may be furnished to the claimant as an attachment to a notification letter.
(3) Rating Decision Coding. If the POW protocol examination was used as part of the evidence in a claim, all conditions noted by the medical examiner and all complaints mentioned by a veteran that are indicative of a specific, ratable condition must be disposed of under the appropriate rating codes.
g. Review of Ratings. Veterans Service Center Managers (VSCM) must review all ratings prepared in former POW claims prior to promulgation. The review must ensure compliance with all laws, regulations, and directives affecting claims from former POWs. Authority for reviewing these ratings may not be delegated to a designee lower than a coach. The reviewer must annotate the rating as follows: "POW rating reviewed. [signature and title][date]." A copy of the rating decision must be provided to the POW coordinator (if different than the VSCM-delegated reviewer) for his/her information.
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h. Copies of Rating Decisions. Regional offices must maintain copies of all former POW rating decisions for a period of 2 years. Thereafter, they may be destroyed in accordance with RCS VB-l, part 1, item 13-052.300.
i. Advance on the Docket. Normally, the Board of Veterans' Appeals (BVA) considers cases in the order of their place on the docket but 38 CFR 19.106 does allow an advance on the docket for "good cause," which includes, but is not limited to, terminal illness, advanced age, extreme financial hardship, and matters concerning interpretation of law of general application that may affect the claims of other veterans or their dependents. Status as a POW in itself is not a sufficient cause for requesting an advance on the docket.
(1) If an advance on the docket is warranted at the precertification step, prepare a memorandum to the Veterans Service Center Manager (VSCM) documenting all factors that are believed to warrant an advance on the docket. If the VSCM does not approve the request, a notation to that effect over his or her signature must be placed in the claims folder.
(2) If the VSCM agrees that an advance on the docket is warranted, a letter to the Chairman of BVA will be prepared for the signature of the station Director. The letter will request an advance on the docket and will set forth in detail the reasons that warrant it. The letter will accompany the claims folder to BVA, where a decision on the request will be made. If the request is denied, BVA will immediately notify the claimant or the claimant's representative. If the request is approved, the BVA decision will contain a statement to that effect.
(3) The VSCM may not delegate authority to approve a request for an advance on the docket. In the absence of the VSCM, however, the Assistant or Acting VSCM may assume the authority.
(4) If a request for an advance on the docket arises from the appellant or from the appellant's representative, the VSCM will not rule on the merits of the request. Instead, the request will be included as an attachment to a letter prepared for the Chairman of BVA. Appropriate language must be used in the letter to refer to the attachments in lieu of a detailed explanation of the reasons for the request.
December 10, 2001 M21-1, Part VI Change 82
SUBCHAPTER VI. 38 U.S.C. 1151 RATINGS
7.24 COMPENSATION OR DIC UNDER 38 U.S.C. 1151
a. General. Entitlement to compensation or DIC is established under 38 U.S.C. 1151 when it is determined that there is additional disability or death resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative (38 CFR 3.358). (See Brown v. Gardner, 115 S. Ct. 552 (1993); 130 L. Ed.2d 462 (1993).)
(1) Necessary Consequences
(a) "Necessary consequences" are defined as those consequences certain or intended to result from the examination or medical or surgical treatment administered. For example, incisions, that when healed result in scars, are a necessary part of the varicose vein removal surgery to which the patient consented and are not a risk or unexpected complication of the procedure.
(b) Whether results were either certain or intended is to be determined in relation to the examination or treatment actually administered. Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. For example, when a veteran consents both to exploratory surgery and to whichever additional procedures are necessary depending on the findings, compensation would not be payable under 38 U.S.C. 1151 for the consequences that are certain or intended to result from the exploratory surgery or whichever additional procedures are performed.
(2) Consent. Whether a veteran consented to VA treatment or examination becomes an issue in 38 U.S.C. 1151 claims only when the disability claimed is a necessary consequence and the treatment or examination was properly administered. Under 38 CFR 3.358(c)(3), consent may be either express or implied. Express consent is consent which has been clearly stated either orally or in writing. Implied consent is that which can be inferred from all of the pertinent facts. For example, if a veteran voluntarily undergoes an examination or medical procedure knowing what it consists of, it may be presumed he or she consented. Any such presumption of consent could, however, be rebutted by evidence showing a lack of consent.
b. Exams. Title 38 U.S.C. 1151 authorizes compensation for injuries resulting from a veteran's "having submitted to an examination" under any law administered by VA. The US Court of Veterans Appeals has interpreted this phrase as authorizing compensation only for injuries that result from the examination itself, not from the process of reporting for the examination (Sweitzer v. Brown, 5 Vet. App. 503 (1993). Thus, a veteran injured by another patient while awaiting the start of his scheduled VA examination was held not to have suffered a qualifying injury.
c. Failure to Properly Diagnose or Treat. Eligibility under 38 U.S.C. 1151 may be based on acts of omission as well as acts of commission. A failure to timely diagnose or properly treat which directly causes increased disability or death may give rise to 38 U.S.C. 1151 eligibility. Similarly, a failure to inform a patient of a necessary consequence of a medical procedure may render the treatment improper. See 38 CFR 17.34 concerning informed consent.
d. Premature Discharge. When it was a physician's medical judgment that a patient should be discharged from hospitalization after a period of treatment but the patient claims that the discharge was too early, leading to a relapse and worsening of the disability, consider whether the timing of the discharge caused the disability to be aggravated beyond the level of natural progress. If so, compensation may be payable under 38 U.S.C. 1151. Development should include a request for a medical certificate indicating that the veteran's condition at discharge was not stable, and that the discharge was premature. Also, an independent medical opinion may have to be obtained for consideration in such a case. 7-VI-1
M21-1, Part VI December 10.2001 Change 82
e. Intercurrent Cause. Eligibility exists under 38 U.S.C. 1151 only if the injury resulted from hospitalization, treatment, or examination. If following VA treatment or surgery a veteran failed to follow post-treatment medical instructions and incurred or aggravated a disability that would not have developed had he or she followed instructions, such a failure may constitute an intercurrent cause precluding payment of benefits under 38 U.S.C. 1151.
f. Medication. Compensation is payable under 38 U.S.C. 1151 for any disability caused by medication which was prescribed by VA, and taken or administered as prescribed, except for the necessary consequences (those which are certain or intended to result from taking such medication properly prescribed).
g. Domiciliary. Hospitalization for medical or surgical treatment under 38 U.S.C. 1151 does not encompass time spent in a domiciliary. A domiciliary provides a veteran with living quarters and is not normally intended for therapeutic or treatment purposes. However, VA treatment or examination resulting in additional disability coincident in time with a veteran's residence in a domiciliary could result in eligibility under 38 U.S.C. 1151.
h. Additional Disability. Entitlement to benefits for additional disability under 38 U.S.C. 1151 may be established by reason of aggravation of a non-service connected pre-existing condition as a result of VA medical treatment or a course of vocational rehabilitation. The level of severity of the additional disability is determined by the following:
1. Establish the level of current disability based on all symptoms and findings. 2. Establish the level of the pre-existing condition. 3. Subtract the level of the pre-existing condition from the level of current disability. 4. If the level of current disability is 100%, do not subtract the level of pre-existing disability even if this level was also 100% (see VAOPGCPREC 4-2001). 5. If the level of the pre-existing disability cannot be determined, no subtraction can be made.
i. Independent Medical Evidence. Independent medical evidence may have to be obtained to clarify whether treatment or surgical procedure at issue resulted in the claimed condition. This could be a medical statement provided by a regional office medical rating specialist who is not a signatory to the rating or information from a medical treatise, such as the Merck Manual, Cecil Textbook of Medicine, or the Physicians' Desk Reference (PDR). An independent medical opinion may be necessary for this purpose. See part VI, paragraph 1.12.
j. Direct Service Connection. If the only issue raised is compensation under 38 U.S.C. 1151 and the disability is clearly one that arose many years after service or coincident with treatment, direct service connection need not be put into issue. However, if the claim is raised within the presumptive period following active military service that would be applicable for the condition claimed or the underlying condition being treated, development should be undertaken and consideration given to granting service connection on a direct or presumptive basis.
k. Reasons and Bases. Ratings must provide an adequate discussion of the factual bases for the claim. The rating must indicate whatever surgery, treatment, or therapy was provided. The rating specialist cannot enter his or her own conclusion that there is no relationship between the treatment, surgery or medication provided and the claimed condition. For example, a rating specialist cannot simply state the evidence does not show a myelogram caused a claimant's tinnitus or that it is unlikely that the veteran's medications caused a claimed side-effect. Medical evidence must be cited for that conclusion. This could be from a medical statement by a rating activity physician who is not a signatory to the rating, or a quote from a medical book, such as the PDR, etc. Except where the propriety of treatment is at issue as discussed in paragraphs a, c, and d, above, the absence of carelessness, negligence, error in judgment, or fault on the part of VA is not to be cited as the sole basis for denying the claim; however, if VA treatment is found to have been erroneous resulting in additional disability, such fault should be discussed as the basis of a grant of benefits under 38 U.S.C. 1151.
September 2, 2003 M21-1, Part VI Change 105
l. Combined Evaluations. Title 38 U.S.C. 1151 disabilities are combined in evaluation with SC disabilities. A 38 U.S.C. 1151 disability evaluated 0 percent may be combined with 0 percent SC disabilities for a 38 CFR 3.324 10 percent grant if interfering with employability. Title 38 U.S.C. 1151 disabilities may serve as the basis of an individual unemployability award. A 0 percent evaluation may be assigned in claims under 38 U.S.C. 1151. A 10 percent rating under 38 CFR 3.324 may be for consideration in combination with noncompensable service-connected disabilities.
m. Ancillary Benefits. Although compensation or DIC is payable under 38 U.S.C. 1151 "as if" the additional disability or death were service connected, the additional disability or death is not itself service connected. Kilpatrick v. Principi, 327 F.3d 1375 (Fed. Cir. 2003) has held that Title 38 U.S.C. 1151 eligibility entitles the veteran to specially adapted housing benefits, provided the disability meets all other requirements. (See 38 CFR 3.809) Clothing allowance is payable for 1151 disabilities. See part IV, paragraphs 22.11 and 22.21.
However, entitlement to compensation under 38 U.S.C. 1151 does not confer eligibility for the following Veterans Benefits Administration ancillary benefits:
• Automobile or Adaptive Equipment, • RH Insurance, • Loan Guaranty for Surviving Spouse including waiver of funding fee, • Chapter 31 and Chapter 35 education benefits, • 10-point Civil Service Preference • Service-Connected Burial Allowance, and • Special Allowance under 38 U.S.C. 1312(a) and Section 156, PL 87-377 (REPS).
n. Advisory Opinion. Unusually difficult cases involving claims under 38 U.S.C. 1151 may be submitted to VA Central Office (211B) for an advisory opinion.
October 6, 2004 M21-1, Part VI Change 120
SUBCHAPTER VII. MISCELLANEOUS RATING CONSIDERATIONS
a. Include a discussion of the benefit-of-the-doubt rule whenever a claim is granted on that basis, or is denied but is supported by significant favorable evidence. Describe and weigh the positive and negative evidence. If the claim is denied, a statement concluding that "the benefit-of-the-doubt rule does not apply because the preponderance of evidence is unfavorable" is generally sufficient.
b. When considering claims for compensation if the service medical records may have been destroyed, such as in the 1973 Federal Records Center fire, VA has a heightened obligation to carefully consider benefit-of-the-doubt and corroborative testimony such as buddy statements. In these cases if service connection cannot be granted based on corroborative testimony, the reasons and bases section of the rating must explain why the evidence was not credible or could not be accepted.
7.26 SPECIAL COMPENSATION FOR CERTAIN PAIRED ORGANS OR EXTREMITIES (38 CFR 3.383)
a. Entitling Criteria. Compensation is payable to veterans in the following cases as if the combination of disabilities was the result of service-connected disability provided the nonservice-connected disability is not the result of the veteran's own willful misconduct:
(1) Blindness in one eye due to service-connected disability and blindness in the other eye due to nonservice-connected disability (effective August 28, 1962).
(2) Loss or loss of use of one kidney due to service-connected disability and involvement of the other kidney due to nonservice-connected disability (severe involvement of nonservice-connected kidney effective August 28, 1962; any involvement of nonservice-connected kidney effective October 28, 1986).
(3) Hearing impairment compensable to a degree of 10 percent or more in one ear due to service-connected disability and hearing impairment that meets the provisions of 38 CFR 3.385 in the other ear due to nonservice-connected disability (effective December 6, 2002). Previous provisions, effective December 1, 1965, required both the service-connected and nonservice-connected ears be totally deaf.
(4) Loss or loss of use of one hand or foot due to service-connected disability and loss or loss of use of the other hand or foot due to nonservice-connected disability (effective October 28, 1986). Entitlement to special monthly compensation for these disabilities under subsection (t) was effective October 1, 1978 through October 27, 1986. Refer to the Addendum to chapter 8 for a description of the history of that benefit.
(5) Permanent service-connected disability of one lung, rated 50 percent or more disabling, in combination with nonservice-connected disability of the other lung (effective October 28, 1986).
b. Prohibitions Against Duplication of Benefits. See part IV, paragraph 20.43.
7.27 DISABILITY OR DEATH FROM USE OF ALCOHOL
a. Alcoholism. Alcoholism, in and of itself, is a misconduct condition.
(1) Alcoholism as a primary condition is not a basis for granting or increasing monetary benefits for compensation or pension under the laws administered by VA. However, if alcoholism is determined to be secondary to a service connected condition, any diseases or disabilities resulting from the alcohol abuse should be service connected under 38 CFR 3.310(a).
M21-1, Part VI October 6, 2004 Change 120
(2) In compensation claims, do not consider personality disorders characterized by developmental defects or pathological trends in the personality structure as underlying psychiatric diseases for this purpose. Alcoholism due to such diagnoses is a bar to granting or increasing benefits based on such alcoholism. However, alcoholism can be the basis for a rating of incompetency.
b. Secondary Effects
(1) In compensation claims filed between August 13, 1964, and October 31, 1990, organic diseases which were a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, were not considered of willful misconduct origin. Secondary results, such as cirrhosis of the liver, gastric ulcer, peripheral neuropathy, or chronic brain syndrome sometimes appear because of indulgence in alcohol. Thus, such conditions may have been compensable or pensionable whether attributable to the chronic use of alcohol or other causes under regulations then in effect.
(2) Effective November 1, 1990, under the provisions of Public Law 101-508 the grant of service connection for secondary disabilities or death that results from the abuse of alcohol is prohibited. Such conditions are not considered to have been incurred in line of duty (see 38 CFR 3.301(d)). Do not sever service connection that was properly established under regulations previously in effect. An increased evaluation may be granted in such cases if acceptable evidence of increased disability is received.
c. Acute Intoxication. A disability or death sustained as a direct result of drunkenness is generally classified as due to willful misconduct. When an individual willingly achieves a drunken state and undertakes tasks for which his/her condition renders him/her physically and mentally unqualified, he/she acts with wanton and reckless disregard of the probable consequences of drinking. Consider the resulting injury or death due to willful misconduct.
d. Application of 38 CFR 3.114(a). Before August 13, 1964, secondary effects of alcohol were also considered to be willful misconduct. Benefits under this revision are not to be awarded prior to August 13, 1964. Adjudicate claims under this change in policy as they are encountered in the course of otherwise required adjudication.
e. DIC Benefits. DIC may not be granted based on death in service if death resulted from an alcohol related disease or disability and the original or reopened claim is received after October 31, 1990.
f. Application of Reasonable Doubt. Alcohol abuse is not the only possible etiology for the types of disabilities listed in paragraph b(1) above. It is not always possible to determine the cause of a disease or disability. Do not deny a claim for service connection for any condition unless the evidence clearly shows its etiology to be related to alcohol abuse. Any indication that a condition is the result of such abuse may be rebutted by evidence showing some other cause. Resolve reasonable doubt in favor of the claimant.
7.28 DISABILITY OR DEATH FROM USE OF DRUGS
a. Drug Abuse Per Se--Willful Misconduct. When drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, consider such disability or death the result of the person's willful misconduct. The progressive and frequent use of drugs, other than for recognized therapeutic purposes, which results in addiction is considered willful misconduct.
b. Secondary Effects of Drug Usage. Prior to November 1, 1990, organic diseases and disabilities shown by substantiating evidence as a secondary result of the chronic use of drugs or infections coinciding with the injection of drugs were not considered to be of willful misconduct origin. Under the provisions of Public Law 101-508, service connection for these secondary effects of drug use may not be established if the claim is filed after October 31, 1990, because they were not incurred in line of duty. (See 38 CFR 3.301(d).)
October 6, 2004 M21-1, Part VI Change 120
c. Drug Usage for Therapeutic Purposes Secondary to Service-Connected Disability. Where the use of drugs or drug addiction is shown by substantiating evidence as arising out of use for recognized therapeutic purposes or as secondary to or resulting from a service connected disability, do not consider such drug use or addiction to be of misconduct origin or a bar to the granting or increasing of monetary benefits.
7.29 DISABILITY OR DEATH FROM USE OF TOBACCO PRODUCTS
a. Direct Service Connection. Effective June 9, 1998, the grant of service connection for a disability or death that results from the veteran’s use of tobacco products in service is prohibited (38 CFR 3.300(a)).
b. Secondary Service Connection
(1) Disability Secondary to Tobacco-Related Disability. In claims for secondary service connection received after June 9, 1998, a disability that is proximately due to a disability previously service-connected on the basis that it resulted from the veteran's use of tobacco products during service will not be service-connected (38 CFR 3.300(c)).
EXAMPLE: Service connection for nicotine dependence was established in 1997 based on tobacco use that began during service. In April 2003, the veteran claimed that his chronic obstructive pulmonary disease was secondary to service-connected nicotine dependence. Service connection for chronic obstructive pulmonary disease should be denied in accordance with 38 CFR 3.300(c).
(2) Disability Related to Tobacco Use After Service. In VAOPGCPREC 6-2003, General Counsel held that secondary service connection may be established for disability or death related to tobacco use after service that is the result of or aggravated by a service-connected disability unrelated to tobacco use. When evaluating these types of cases, first determine whether the service-connected disability caused the veteran to use tobacco products after service. If so, then decide whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing or aggravating a secondary disability or causing or contributing to death, and whether the additional disability or death would not have occurred but for the use of tobacco products caused by the service connected disability.
EXAMPLE: A veteran who is service-connected for posttraumatic stress disorder (PTSD) claims secondary service connection for tobacco-related emphysema. He states that he started smoking cigarettes after service because of anxiety related to PTSD. Grant service connection for emphysema on a secondary basis if it is shown that
• symptoms of PTSD resulted in the veteran’s use of cigarettes • cigarette smoking related to PTSD was a substantial factor in causing (or aggravating) emphysema, and • emphysema (or an increase in its severity) would not have occurred if the veteran had not smoked cigarettes.
NOTE: On the rating code sheet show, “Emphysema, tobacco-related, associated with PTSD.”
January 31, 1997 M21-1, Part VI Change 58
ISSUE: Proposed Reduction to Schedular Evaluation
EVIDENCE: Notice of Failure to Cooperate with field examiner
DECISION: A reduction to the schedular evaluation shown below is proposed because of the veteran's failure to cooperate with a required field examination.
REASONS AND BASES: A total disability rating has been in effect because of unemployability. Notice has been received that the veteran refused to cooperate in the conduction of a required field examination.
JURISDICTION: Field Examiner Notification
1. SC ( )
8. NSC ( )
18. Individual Unemployability from
Suggested Rating Decision Format for Proposed Reduction to Schedular Evaluation, Noncompletion of Field Examination
M21-1, Part VI January 31, 1997 Change 58
ISSUE: Reduction to Schedular Evaluation
EVIDENCE: Notice of Failure to Cooperate with field examiner
DECISION: Reduction to the schedular evaluation is in order because of the veteran's failure to cooperate in the conduction of a required field examination.
REASONS AND BASES: A total disability rating has been in effect because of unemployability. Notice has been received that the veteran failed to cooperate with a required field examination and the veteran failed to respond to the predetermination notice sent .
JURISDICTION: Field Examiner Notification
1. SC ( )
8. NSC ( )
18. Individual Unemployability from to
Suggested Rating Decision Format for Reduction to Schedular Evaluation, Noncompletion of Field Examination
January 31, 1997 M21-1, Part VI Change 58
ISSUE: Total Disability Because of Unemployability
EVIDENCE: Report of Field Examination 12/11/95
DECISION: The total rating based on unemployability is restored.
REASONS AND BASES: Veteran's total disability rating because of unemployability was reduced to the schedular evaluation because of the lack of cooperation in completing a required field examination. Sufficient evidence, including completion of the field examination, has been received establishing continuing unemployability.
JURISDICTION: Completion of Field Examination
1. SC ( )
8. NSC ( )
COMB: 18. Individual Unemployability from
Suggested Rating Decision Format for Restoration of Unemployability, Completion of Field Examination
February 9, 2005 M21-1, Part VI Change 124 ADDENDUM A POVERTY THRESHOLD 38 CFR § 4.16(a) provides that marginal employment generally is deemed to exist when a veteran's earned annual income does not exceed the amount established by the Bureau of the Census as the poverty threshold for one person. As this threshold is amended, VA is required to publish the new poverty threshold figures as notices in the Federal Register. The table below shows current and historical poverty thresholds. POVERTY THRESHOLD
*After consulting with General Counsel, VA modified the poverty threshold figure for 2002 from $9,214 to $9,039 and the effective date from 8/22/02 to 9/24/02.
M21-1, Part VI February 9, 2005 Change 124 ADDENDUM B HISTORY OF PRESUMPTIVE DISABILITIES FOR PRISONERS OF WAR UNDER 38 CFR 3.309(c)
Prior to 10-1-81, a former POW must have been confined for 6 months or more to be eligible for the presumptive provisions of 38 CFR 3.309(c). Effective 10-1-81, confinement of 30 days or more was required for eligibility. Effective 12-16-03, the length of captivity requirement was eliminated for service connection of psychosis, any of the anxiety states, dysthymic disorder (or depressive neurosis), organic residuals of frostbite, and post-traumatic osteoarthritis.
PL 91-376 8-12-70 PL 97-37 10-1-81 PL 98-223 10-1-83 PL 99-576 10-1-86 PL 100-322 5-20-88 PL 108-183 7-18-03 §3.309(c) Amended 10-7-04 Avitaminosis X Beriberi (including beriberi heart disease)* X Chronic dysentery X Helminthiasis X Malnutrition (including optic atrophy associated with malnutrition) X Pellagra X Any other nutritional deficiency X Psychosis** and *** X Any of the anxiety states*** X Dysthymic disorder (or depressive neurosis)*** X Organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite*** X Post-traumatic osteoarthritis*** X Irritable bowel syndrome X Peptic ulcer disease X Peripheral neuropathy except where directly related to infectious causes X Cirrhosis of the liver X Atherosclerotic heart disease X Hypertensive vascular disease X Stroke X
*Regulations were amended effective 8-24-93 to include ischemic heart disease in POWs who had experienced localized edema during captivity. Effective 10-7-04, 38 CFR 3.309(c) was amended to include ischemic heart disease regardless of whether localized edema was shown in service.
**Effective 8-12-70, compensable manifestations of psychosis were required within 2 years of separation from service. Effective 10-1-81, there is no time limit for compensability of manifestations of psychosis. Other listed diseases have never had any time limit for compensability.
***Effective 12-16-03, a minimum length of captivity is not required for the presumptive provisions of 38 CFR 3.309(c).
February 9, 2005 M21-1, Part VI Change 124
ADDENDUM C HISTORY OF PRESUMPTIVE DISABILITIES FOR IONIZING RADIATION UNDER 38 CFR 3.309(d)*
PL 100-321 5-1-88** PL 102-578 10-1-92 §3.309(d) Amended 3-26-02 Leukemia (other than chronic lymphocytic leukemia) X Cancer of the thyroid X Cancer of the breast X Cancer of the pharynx X Cancer of the esophagus X Cancer of the stomach X Cancer of the small intestine X Cancer of the pancreas X Multiple myeloma X Lymphomas (except Hodgkin’s disease) X Cancer of the bile ducts X Cancer of the gall bladder X Primary liver cancer (except if cirrhosis or hepatitis B is indicated) X Cancer of the salivary gland X Cancer of the urinary tract (the term urinary tract means the kidneys, renal pelves, ureters, urinary bladder, and urethra.) X Bronchiolo-alveolar carcinoma X Cancer of the bone X Cancer of the brain X Cancer of the colon X Cancer of the lung X Cancer of the ovary X
*Effective 8-14-91 (PL 102-86), eligibility to presumptive service connection was extended to individuals engaged in a radiation-risk activity during active duty for training or inactive duty training. Effective 3-26-02, the definition of “radiation-risk activity” in 38 CFR 3.309(d) was expanded to include exposure to radiation related to underground nuclear tests at Amchitka Island, Alaska, before 1-1-74, and service at gaseous diffusion plants in Paducah, Kentucky; Portsmouth, Ohio; and Oak Ridge, Tennessee.
**A 30-year presumptive period was originally required for leukemia with a 40-year presumptive period for all other conditions. The presumptive period for leukemia was extended to 40 years effective 8-14-91. Effective 10-1-92, no presumptive period was specified or required for any condition.
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