Compensation & Pension Service

1. Compensation & Pension Service GENERAL POLICY IN RATING VeteransBenefitsAdministration April 2008

2. OBJECTIVES • Understand general policies related to establishing service connection. • Understand rating policy on special issues. • Understand how to use the Rating Schedule for evaluation purposes.

3. RATING AND EVALUATION SECTIONS OF Title 38 CFR Part 3 Topics: 1.    Basic entitlement considerations 2.    Service connection 3.    Ratings for special purposes 4. Rating policy on special issues

4. BASIC ENTITLEMENT CONSIDERATIONS Evidence required to substantiate a claim for service connection: • Service treatment records (STRs), • Continuity, • Lay statements, • First treatment, • Recent treatment, and • Treatment prior to service, in cases of a pre-existing condition.

5. BASIC ENTITLEMENT CONSIDERATIONS Continuity = Evidence of ongoing symptomatology of the condition from military service to the present. When a condition diagnosed in service is held to be chronic (under 38 CFR 3.309(a); or, by nature of symptoms and treatment shown) during service, there is no requirement of evidence of continuity.

6. BASIC ENTITLEMENT CONSIDERATIONS Lay statements = Evidence from people who know the veteran and describing observations about the veteran’s condition. Lay persons cannot give a diagnosis.

7. BASIC ENTITLEMENT CONSIDERATIONS First treatment = Evidence to show the first treatment for the claimed disability following service. Recent treatment = Evidence to show recent treatment and current severity for the claimed condition.

8. BASIC ENTITLEMENT CONSIDERATIONS Treatment prior to service = May be needed for cases involving pre-existing conditions Service Treatment Records = Needed in all cases

9. LINE OF DUTY AND MISCONDUCT (§3.301) Direct service connection may be granted only when a disability or cause of death: • Was incurred or aggravated in the line of duty, and • Not the result of the veteran’s own willful misconduct, or • The result of the abuse of alcohol or drugs, for claims filed after October 31, 1990.

10. LINE OF DUTY AND MISCONDUCT • In 1990, 38 U.S.C. 1110 amended to exclude payment of compensation for disability contracted in the line of duty that is the result of the veteran’s own abuse of alcohol or drugs. • In Allen v. Principi (2001), the Federal Circuit found that 38 U.S.C. 1110 permits a veteran to receive compensation for an alcohol abuse or drug abuse disability acquired as secondary to, or as a symptom of, a veteran’s service-connected disability.

11. LINE OF DUTY AND MISCONDUCT • According to the Federal Circuit, section 1110 precludes compensation only in two situations: • For primary alcohol abuse disabilities, and • For secondary disabilities that result from primary alcohol abuse. • “Primary” defined as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess.

12. DIRECT SERVICE CONNECTION (§§3.303 and 3.304) • Direct service connection = The facts, as shown by the evidence, establishes that an injury or disease resulting in disability was incurred during military service.

13. DIRECT SERVICE CONNECTION • Determinations as to service connection will be based on: • Review of the entire evidence of record, with • Due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. (§3.303(a))

14. DIRECT SERVICE CONNECTION Several principles may require consideration when determining direct service connection: • Presumption of soundness, • Chronicity and continuity, • Pre-service disabilities noted in service, and • Post-service initial diagnosis of disease.

15. PRESUMPTION OF SOUNDNESS • The veteran is considered to have been in sound condition when accepted into service except as to conditions noted at entrance into service, or where clear evidence demonstrates that the condition existed prior to service. (§3.304(b)) • For peacetime service prior to 1-1-47, presumption of soundness arises after 6 months of continuous service.

16. SERVICE CONNECTION BASED ON AGGRAVATION (§3.306) • Service connection may be granted for a condition which pre-existed service, if the condition was shown to be aggravated during service. • Aggravation is presumed if there is an increase in disability during such service, unless the increase was due to the natural progression of the disease.

17. SERVICE CONNECTION BASED ON AGGRAVATION • Aggravation is not applicable if no evidence of increase in service. • The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, will not be considered service-connected unless the condition is otherwise aggravated by service.

18. SERVICE CONNECTION BASED ON PRESUMPTIVE PROVISIONS (§3.307) • Some diseases are very insidious and slow in development. Under certain circumstances, it will be conceded that these conditions may have originated in service without it being known or without apparent symptoms. • There are specific safeguards and rules that must be observed.

19. SERVICE CONNECTION BASED ON PRESUMPTIVE PROVISIONS • Presumptive service connection for chronic disease requires: • 90 days of wartime service or service after December 31, 1946. • The 90 days must be continuous service within or extending beyond a wartime period or after December 31, 1946. • Any length of service satisfies 38 CFR 3.309(c) (POW) and (e) (herbicides) disabilities.

20. SERVICE CONNECTION BASED ON PRESUMPTIVE PROVISIONS • 38 CFR 3.309 (a) and (b) contain the diseases subject to presumptive service connection as chronic or tropical diseases. • Chronic diseases listed in 38 CFR 3.309(a) must have become manifest to a degree of 10% or more within one year from date of separation, with three exceptions: • Hansen's disease (leprosy) – 3 years • Tuberculosis – 3 years • Multiple sclerosis – 7 years

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

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

23. SERVICE CONNECTION BASED ON PRESUMPTIVE PROVISIONS • The presumption of service incurrence for the diseases listed in 38 CFR 3.309 may be rebutted by evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease. • As to tropical diseases, the fact that the veteran had no service in a locality having a high incidence of the disease may be considered as evidence to rebut the presumption. The known incubation periods should be used as a factor in rebuttal as showing inception before or after service.

24. §3.309 provides list of diseases subject to presumptive service connection: §3.309(a) and (b), chronic and tropical diseases, previously discussed §3.309(c), diseases specific to former prisoners of war §3.309(d) and 3.311, diseases specific to radiation-exposed veterans SPECIAL ISSUES RELATING TO GENERAL RATING POLICIES

25. SPECIAL ISSUES RELATING TO GENERAL RATING POLICIES • §3.309(e), diseases associated with herbicide exposure: • §3.307(a)(6) provides the definition of “service in the Republic of Vietnam.” VA only concedes presumption of exposure to herbicides for service members who had actually set foot on Vietnamese soil or served on a craft in its inland waterways (VAOPGCPREC 27-97). • Korea DMZ, April 1968 - July 1969, see M21-1MR IV.ii.2.C.10.

26. SECONDARY CONDITIONS (§3.310) A disability, which is proximately due to, or the result of a service-connected disease or injury will be service connected. Diabetes Diabetic Retinopathy

27. SECONDARY CONDITIONS • An increase in non-service connected disability caused by aggravation from a service-connected disability will also be service-connected. (Allen v. Brown, 1995) • Cardiovascular disease and amputation of lower extremities at certain levels

28. CAUSE OF DEATH (§3.312) The death of a veteran will be considered as being due to a service-connected disability when the evidence establishes that such disability was either the principle or contributory cause of death.

29. SERVICE IN VIETNAM (§3.313) This section specifically addresses that service connection should be granted for non-Hodgkin’s lymphoma (NHL) which develops subsequent to service in Vietnam.

30. UNDIAGNOSED ILLNESSES (§3.317) Persian Gulf War veterans who suffer from qualifying chronic disabilities resulting from undiagnosed illnesses may receive disability compensation, if: • The disability appeared during service in Southwest Asia theater of operations during the Persian Gulf War, or is shown to a compensable level at any time since then through December 31, 2011, AND

31. UNDIAGNOSED ILLNESS (§3.317) • By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. • Qualifying chronic disabilities: • Chronic fatigue syndrome • Fibromyalgia • Irritable bowel syndrome

32. GENERAL RATING CONSIDERATIONS (§3.321) • The provisions contained in the rating schedule represent the average impairment in earning capacity in civil occupations resulting from disability. • Exceptional cases: For the exceptional case where the schedular evaluation is inadequate, the USB or C&P Director can authorize an extra-schedular evaluation. • Defined as: An exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization.

33. RATING DISABILITIES AGGRAVATED BY SERVICE (§3.322) • The evaluation assigned will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service. • Current disability (minus) Preexisting disability = Evaluation assigned • If current disability is total (100%), no deduction

34. COMBINED RATINGS (§3.323) Where there are two or more disabilities, a combined evaluation will be computed using the Combined Rating Table found in 38 CFR 4.25 and rules prescribed in the Schedule for Rating Disabilities.

35. MULTIPLE NONCOMPENSABLE SERVICE-CONNECTED DISABILITIES (§3.324) • If a veteran has two or more non-compensable (0%) service-connected disabilities that interfere with normal employability, a 10-percent combined evaluation may be assigned. • This is an inferred issue that must be addressed in all cases with multiple non-compensable evaluations.

36. EXAMINATIONS (§3.326) • If medical evidence accompanying a claim is not adequate for rating purposes, a VA exam may be authorized. Individuals are required to report. • An examination is not necessary if other medical evidence is adequate for rating purposes. • Benefits to a former POW will not be denied unless they have been offered a complete POW Protocol Examination.

37. RE-EXAMINATIONS AND PERMANENCY (§3.327) • Review examinations will be requested when VA determines there is a need to verify either continued existence or the current severity of a disability. • The time period for a review examination may be provided by the Rating Schedule or may be at the discretion of the RVSR.

38. RE-EXAMINATIONS AND PERMANENCY (§3.327) • Veterans are required to report for re-examinations. • Failure to report for the examination without good cause may result in reductions in evaluations subject to 38 CFR 3.655 and due process provisions of 38 CFR 3.105(e).

39. PERMANENT & TOTAL RATINGS AND UNEMPLOYABILITY (§3.340) • Total disability is considered to exist when there is an impairment of mind or body that is sufficient to render it impossible for the average person to follow substantially gainful employment. • Will not be assigned for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

40. PERMANENT & TOTAL RATINGS AND UNEMPLOYABILITY • Total disability may or may not be permanent. • Permanence of total disability exists when such impairment is reasonably certain to continue through the life of the disabled person.

41. CONTINUANCE OF TOTAL DISABILITY RATINGS (§3.343) • Generally, total disability ratings when warranted by the severity of the condition will not be reduced, in the absence of clear error, without an examination showing material improvement.

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

43. STABILIZATION OF EVALUATIONS (§3.344) • If an examination indicating improvement is less full and complete that the examination on which payments were authorized or continued, it cannot be used as a basis for reduction. • Ratings on account of disease subject to temporary or episodic improvement cannot be reduced on any one examination, unless all the evidence of record warrants a conclusion that sustained improvement has been shown.

44. STABILIZATION OF EVALUATIONS • Ratings based on diseases which become comparatively symptom free after prolonged rest, will not be reduced based on examinations reflecting the results of bed rest. • Sustained improvement must be demonstrated under the ordinary conditions of life.

45. STABILIZATION OF EVALUATIONS • If doubt remains after consideration of all the evidence, continue the rating with an examination to be rescheduled in 18, 24, or 30 months. • This only applies to ratings that have continued at the same level for 5 or more years. • It does not apply to disabilities that have not stabilized and are likely to improve.

46. SPECIAL MONTHLY COMPENSATION(38 CFR 3.350) “Special Monthly Compensation” recognizes the severity of certain disabilities or combinations of disabilities by adding an additional compensation to the basic rate. More on SMC in later lessons.

47. BENEFITS UNDER 38 U.S.C.1151 (38 CFR §§3.358 and 3.361) • If it is determined that there is an additional disability or aggravation of an existing disease or injury suffered as a result of treatment by the VA which includes, hospitalization, medical or surgical treatment, examination, or vocational rehabilitation training: Compensation will be payable for such disability. • §3.358 – Claims received before 10-1-97 • §3.361 – Claims received on or after 10-1-97

48. BENEFITS UNDER 38 U.S.C.1151 • §3.361 – Claims received on or after 10-1-97 • Regulation includes compensation for additional disability due to Compensated Work Therapy (CWT) for claims pending before VA on November 1, 2000 or received after that date. • Certain ancillary benefits cannot be awarded by reason of a qualifying disability under 1151 – see M21-1MR IV.ii.2.G.35.g.

49. BENEFITS UNDER 38 U.S.C.1151 • Determining whether a veteran has an additional disability • Establishing the cause of additional disability or death • Actual causation required • Continuance or natural progress of a disease or injury • Veteran's failure to follow medical instructions • Establishing the proximate cause of additional disability or death

50. Compensation is payable for combinations of service- connected and nonservice-connected disabilities, as if both disabilities were service-connected as long as the nonservice-connected disability is not due to the veteran’s own willful misconduct. PAIRED ORGANS AND EXTREMITIES (§3.383)