WELCOME WEEK FIVE
Visual Impairment 38CFR 4.75(a) The term “visual impairment” refers to a result of an eye disorder or condition. The evaluations for visual impairment are based on: • Impairment of visual acuity (va) • Impairment of visual field, and • Impairment of muscle function.
Visual Acuity 38CFR 4.76 (b) Base visual acuity evaluations on corrected, distance vision
Examinations 38CFR 4.75 • Exams must be conducted by licensed optometrists and ophthalmologists. • A diagnosis is required for abnormal findings. • Exams of visual fields and muscle function are needed only when medically indicated or when specially requested, such as in BVA remand.
Eye complications due to diabetes and hypertension • Most common: retinopathy, glaucoma, cataract • Retinopathy is a general term that refers to some form of non-inflammatory damage to the retina. It is frequently a manifestation of systemic disease. • Two types: background diabetic retinopathy and proliferative diabetic retinopathy.
Glaucoma 6012 and 6013 • Glaucoma is a general term for a group of diseases that produce damage to the optic nerve and decreased peripheral vision. • Secondary glaucoma: diabetic retinopathy, retinal vein occlusion, steroids …
Cataracts and Aphakia6027, 6029 • Cataract – opacity or cloudiness in lens. To evaluate: use visual impairment for either preoperative or post operative cataracts with replacement lens. • Aphakia – absence of the lens. To evaluate: use visual impairment elevated by one step but assign a minimum 30%, unilateral or bilateral.
Paired Organs 38CFR 3.383 IF one eye is SC and not the other, and each eye is at a visual acuity of 20/200, or each eye peripheral field is 20 degrees or less, and the NSC problem is not due to misconduct, THEN compensation is payable “as if” both eyes were service connected.
HEARING LOSS Service Connection and Evaluation of Ratings
SERVICE CONNECTION REQUIREMENTS • Medical evidence of a current disability • Medical or, in certain circumstances, layevidence, of in-service incurrence or aggravation of a disease or injury • Medical evidence (opinion) of a nexus between the claimed in-service disease or injury and the current disability
Hearing Loss – 38 CFR3.385 • Any threshold loss of 40 decibels or greater in the 500 – 4000 hertz frequency range, or • Thresholds for at least three of the frequencies in this range being 26 decibels or greater, or • Speech Recognition score of less than 94 percent in accordance with the Maryland CNC Test.
CAVC - Hensley v. West, (1993) • Establishes that a hearing loss under 38 C.F.R. § 3.385 does not have to be shown during service to establish service connection (38 C.F.R. § 3.303(d))
Presumptive Service Connection • October 1995 VHA Memorandum: “it would be appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.” • Tinnitus has not been conceded in such manner; however, a finding of tinnitus within one year after discharge typically cannot be dissociated from service. VA physicians have been instructed to opine that tinnitus “at least as likely as not” due to service if claimed or diagnosed within a year after separation.
Overcoming Adverse Decisions • 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) • VA General Counsel Precedent Opinion 12-99 (October 18, 1999) – provides definition of when the status of “combat veteran” is conferred. Combat status not wholly contingent upon awards or citations, but all evidence will be considered and resolved on a case-by-case basis with all reasonable doubt applied.
Overcoming Adverse Decisions • Lay evidence – buddy statements, letters from friends and family, etc … See 38 C.F.R. § 3.159(a)(2). • Medical treatises – may be used to corroborate veteran’s claims of service incurrence of audio disability and, in some cases, support a nexus between current disability and service. Most effective when submitted in conjunction with a medical opinion.
Supportive Medical Opinions • Include audiometric findings and results of any other clinical tests. Physician should identify specialty and note treatment history with veteran. Have physician review SMRs and other pertinent records and note in the report that such records have been reviewed. If negative VA opinion has been rendered, physician should review this and comment as well. Opinion should be in as definitive language as possible and written in clear prose with a succinct, but thorough rationale. Inclusion of as many of these elements as possible will heighten the probative value of the evidence and increase the veteran’s prospects for a successful claim. • VHA Directive 2000-029 clearly provides authority for treating VA physicians to render opinions on behalf of veteran patients’ claims for VA disability benefits.
Rating Hearing Loss • Tables VI, VIA, and VII of 38 C.F.R. § 4.85. • Examiner must be state-certified audiologist. Examination must include speech discrimination and audiometric testing. Testing will be conducted without hearing aids. • Hearing loss ratings typically predicated upon the average threshold loss of 1000-4000 hertz frequencies combined with the percentage of speech discrimination in Table VI for each ear.
Hearing Loss Ratings • If only one ear is service connected, the non service-connected ear will be assigned a Roman Numeral of 1 in order to determine percentage of evaluation in Table VII. 38 C.F.R. § 4.85(f) • Notable exception to this rule is that if a 10 percent rating, Roman Numeral X, is shown in the service-connected ear. This will allow the non service-connected ear to be rated as if service connected in conjunction with the service-connected ear for rating purposes. 38 U.S.C. § 1160(a)(3).
Exercise #1: Is there an audio impairment per 38 CFR 3.385? Maryland CNC: 95 right ear, 93 left ear. Thresholds: Right ear Left ear 500 30 20 1000 25 20 2000 30 30 3000 25 25 4000 30 25 6000 40 40
Exercise #1 Answer • Yes, there is audio impairment in both ears. The right ear because 3 decibel losses are 30. The left ear because the speech recognition score is less than 94.
Exercise #2: Find the pure tone averages 500 15 15 1000 25 45 2000 30 45 3000 30 - inconsistent 4000 45 70 6000 60 90 Average: Right __ Left __
Exercise #2 Answers • Right ear puretone average is 33 25+30+30+45 = 130 ÷ 4 = 32.50 • Left ear puretone average is 53. 45+45+70 = 160 ÷ 3 = 53.33
Exercise #3: What is the Numeric Designation of Hearing Impairment? Maryland CNC: 95 right ear, 90 left ear. Thresholds: Right Left 500 30 20 1000 25 30 2000 30 35 3000 25 40 4000 30 65 Average: ___ ___ ND: ___ ___
Exercise #3 Answers • Right Ear Pure tone average is 27.5 = 28. CNC 95. The ND is I. • Left Ear Pure tone average is 42.5 = 43. CNC 90. The ND is II.
Exercise #4: What is the Percentage Evaluation? Both ears are SC. Maryland CNC: 88 right ear, 74 left ear. Thresholds: Right ear Left ear 1000 35 40 2000 50 60 3000 65 70 4000 75 85 Average: 56 64
Exercise #4Answer: 10% Right ear numeric designation is II. Left ear numeric designation is V. Using Table VII, the better ear is II and the poorer ear is V. These numbers intersect at 10.
PAIRED ORGANS 38 CFR 3.383(a)(3) • When only one ear is service connected, the non-service connected ear will be considered service connected, if • the hearing loss in that ear meets the definition of hearing loss as defined by 38 CFR 3.385, AND • the service connected ear hearing loss is evaluated 10% or more.
TINNITUS Dx. code 6260 • Tinnitus is the perception of sound in the absence of an acoustic stimulus. • It is subjective only. • It may occur as a symptom of nearly all ear disorders; ototoxicity due to medicines and other agents; anemia; cardiovascular disease; acoustic trauma; hypothyroidism; and head trauma. • Maximum evaluation = 10%
Special Monthly Compensation and Ancillary Benefits • 38 U.S.C.1114(k), (l), (m), (m), (o), (p) • (38 CFR 3.350) • §3.808 Automobiles or other conveyances • §3.809 Specially adapted housing • §3.809a Special home adaptation grants
Special Monthly Compensation VA can pay additional compensation to a veteran who, as a result of military service, incurred the loss or loss of use of specific organs or extremities. 38CFR 3.350
What Is Considered Loss or Loss of Use? Loss, or loss of use, is described as either an amputation or, having no effective remaining function of an extremity or organ. The disabilities VA can consider for SMC include:
loss, or loss of use, of a hand or foot • immobility of a joint or paralysis • loss of sight of an eye (having only light perception) • loss, or loss of use, of a reproductive organ • complete loss, or loss of use, of both buttocks • deafness of both ears (having absence of air and bone conduction) • inability to communicate by speech (complete organic aphonia) • loss of a percentage of tissue from a single breast, or both breasts, from mastectomy or radiation treatment
The VA will pay higher rates for combinations of these disabilities such as loss or loss of use of the feet, legs, hands, and arms, in specific monetary increments, based on the particular combination of the disabilities. There are also higher payments for various combinations of severe deafness with bilateral blindness. Additional SMC is available if a veteran is service connected for paraplegia, with complete loss of bowel and bladder control.
If a veteran is service connected at the 100% rate and is housebound, bedridden, or is so helpless to need the aid and attendance of another person, then consideration of payment of additional SMC can be considered. The amount of SMC will vary depending on the level of aid and attendance needed.
ANCILLARY RATING DECISIONS
ANCILLARY (MEMORANDUM) RATINGSRatings of Entitlement • Memorandum rating decisions are ratings for specific purposes. • Determining basic entitlement to ancillary benefits • Providing information to other services and agencies
Definition Ancillary Benefits Ancillary benefits are: • Secondary benefits that are considered when evaluating claims for: • Compensation or • Dependency and Indemnity Compensation (DIC) Eligibility for ancillary benefits is contingent on the type of disability entitlement the veteran has or the circumstances of the veteran’s death.
ANCILLARY RATINGS - Clothing Allowance • Vocational Rehabilitation • Dependents Educational Assistance (DEA) • CHAMPVA • Loan Guaranty Mortgage Insurance or Survivor • Automobile Allowance • Adaptive Equipment Allowance • Specially Adapted Housing (SAH) Grant • Special Housing Adaptation (SHA) Grant • Competency/Incompetency • Homicide • Veterans Civil Service Preference • Adult Helpless Child
ANCILLARY RATINGS Clothing Allowance 38 CFR 3.810 Vocational Rehabilitation 38 CFR Part 21 Dependents Educational Assistance (DEA) 38 CFR 3.807 CHAMPVA 38 CFR 17.270 – 17.278 Loan Guaranty 38 CFR 3.805 Automobile Allowance 38 CFR 3.808 Adaptive Equipment Allowance 38 CFR 3.808 Specially Adapted Housing (SAH) Grant 38 CFR 3.809 Special Housing Adaptation (SHA) Grant 38 CFR 3.809a Competency/Incompetency 38 CFR 3.353 Homicide 38 CFR Part 3 Subpart A 3.11 Veterans Civil Service Preference 38 CFR 3.357 Adult Helpless Child 38 CFR 3.356
VOC REHABILITATION - CH 31 • Service connected condition must be: • 10 percent with a serious handicap, or • 20 percent with an employment handicap, and • be discharged or released from military service under other than dishonorable conditions. • Service member pending medical separation from active duty may apply, but the disability rating must be at least 20 percent.
VOC REHABILITATION CONT: • Period of Eligibility: • 12 years from the latter of the following: • date separated from active military service, or • date veteran was notified of a qualifying service-connected disability rating. • NOTE: Eligibility period may be extended if Vocational Rehabilitation determines the veteran has a Serious Employment Handicap
VOC REHABILITATION CONT: • BENEFITS: • maximum of 48 months • VA pays cost of services • training at a college, vocational, technical or business school • subsistence allowance for participate • On-The-Job Training, apprenticeships, and non-paid work experiences • work study with VA
VOC REHABILITATION CONT: • Benefits (Cont): • evaluation to determine abilities, skills, interests, and needs • counseling and rehabilitation planning • employment services • use of special employer incentives • case management, counseling, and referral • independent living services • Application: VA Form 28-1990, Disabled Veterans Application for Vocational Rehabilitation
CLOTHING ALLOWANCE • Eligibility: • service-connected disability that requires a prosthetic or orthopedic device that wears out clothing. or • veteran uses medication for a skin condition that causes damage to outer garments.
CLOTHING ALLOWANCE CONT: • Benefit: • Annual Payment • Payment $741.00 • Benefit effective August 1 annually • Payment date September 1st • VA Form 10-8678, Application for Annual Clothing Allowance
AUTOMOBILE ALLOWANCE • Eligibility : • Anatomical loss, or permanent loss of use, of one or both feet, or • Anatomical loss, or permanent loss of use, of one or both hands, or • Permanent impairment of vision of both eyes under with central visual acuity of 20/200 or less in the better eye w/corrective lenses, or central visual acuity of more than 20/200 if there is qualifying visual field defect.
AUTO ALLOWANCE CONT: Eligibility: To purchase a new/used automobile: • disability must be result of injury/disease incurred or aggravated by activity military, OR • result of medical treatment, examination, voc rehab or compensated work therapy provided by the VA
AUTO ALLOWANCE CONT: • Benefit: The grant is paid directly to the seller of the automobile for the total price (up to $18,900) of the automobile. The veteran or service member may only receive the automobile grant once in his/her lifetime. • Application: • VA Form 21-4502, Application for Automobile or Other Conveyance and Adaptive Equipment
ADAPTIVE AUTO EQUIPMENT • Eligibility: • Veterans eligible for Automobile Allowance are also eligible for Adaptive Equipment Allowance. • Eligible for Adaptive Equipment Allowance but not for Automobile Allowance: • SC ankylosis of one or both knees or hips