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M21-1, Part III, Subpart iv, Chapter 5, Section B – Principles of Disability Evaluation

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3

1.  Selecting DCs


Introduction

This topic includes information to supplement the regulatory provisions for selection of  DCs to evaluate disabilities in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, including

Change Date

November 7, 2017

III.iv.5.B.1.a.  Choosing From Multiple Possible DCs 

Diagnostic codes (DCs) must be carefully selected and reasons for selection given if two or more are applicable.  When multiple DCs apply to a given disability, consider
  • whether separate evaluations are warranted, and/or
  • which DC will result in the most advantageous outcome for the claimant.
References:  For more information on

III.iv.5.B.1.b.  Use of Hyphenated DCs 

Hyphenated DCs may be utilized for diseases or injuries.  The use of a hyphenated DC is not intended to substitute for appropriate assignment of separate evaluations for different disabilities arising from a single injury.
References:  For more information on the

III.iv.5.B.1.c.  When to Avoid Rating By Analogy 

Analogous ratings are utilized when a specific disability is not listed in 38 CFR Part 4, the Department of Veterans Affiars (VA) Schedule for Rating Disabilities.  When a condition is specifically listed in the rating schedule, it may not be rated by analogy.
When there is a diagnosis of two separate conditions, apply the DC(s) that specifically pertains to the listed conditions and determine the appropriate disability evaluations.
 
Reference:  For more information on analogous ratings, see

III.iv.5.B.1.d.  Impact of a Change in DC

Service connection (SC) of a disability is not severed when the site of a disability or the DC associated with it is corrected to more accurately determine the benefit to which a Veteran may be entitled.  The diagnosis or site of the existing service-connected (SC) condition may be corrected to accurately reflect the actual anatomical location of the injury or disease resulting in the Veteran’s disability, provided the redesignation does not result in severance of SC for the disability in question.
However, a change in DC cannot serve to reduce a protected disability evaluation where the symptoms upon which the evaluation was based are no longer present.
A change of diagnosis shown on examination or in other medical evidence must be reconciled to determine whether the underlying disability is the same condition or a progression of the condition that was previously diagnosed under a different diagnosis or whether a new disability, unrelated to the prior diagnosis, is being addressed.
 
Example 1:  A Veteran is SC for gunshot wound (GSW) of the right thigh muscle group (MG) XIII under 38 CFR 4.73, DC 5313 with a 10-percent evaluation assigned based on moderate impairment.  Subsequent evidence showed that the GSW actually impacted only MG XV, which is evaluated under 38 CFR 4.73, DC 5315 and that there was never an injury to or impairment of MG XIII.  In this situation, since the correction of DC serves only to correct the site of the impairment and does not serve to effectively sever SC for an otherwise properly established disability, the change in DC is warranted.
 
Example 2:  A Veteran is SC under 38 CFR 4.71a, DC 5257 for mild instability of the left knee shown on examination.  The evaluation has been in place for over 20 years and is protected under 38 CFR 3.957.  A claim for increase is received.  The resultant examination shows no instability of the left knee but does show arthritis and pain related to the SC injury.  In this situation, the 10-percent evaluation assigned under 38 CFR 4.71a, DC 5257 may not be reduced or eliminated.  However, since there are separately compensable disabilities shown in the record, a separate evaluation for arthritis may be assigned under 38 CFR 4.71a, DC 5010.
 
References:  For more information on

III.iv.5.B.1.e.  Handling a Change in Diagnosis

38 CFR 4.13 directs that evidence suggesting a change in the diagnosis of an SC disability must be reviewed with a goal of reconciling the discrepancy and maintaining SC for the disability, where possible.  Reconciliation is necessary to ensure
  • accuracy of the diagnosis, and
  • that the proper disability has been examined and is being evaluated.
Refer to the table below for actions to take when a change in diagnosis of an SC disability is shown.
If the …
Then …
change in diagnosis is shown on a VA examination and the examiner does not reconcile the change in diagnosis
return the examination report for clarification as directed at M21-1, Part III, Subpart iv, 3.D.3.c.
change in diagnosis is shown in outpatient treatment records or other medical evidence
request a medical opinion and examination (if warranted) to reconcile the change in diagnosis.
medical evidence definitively shows that the diagnosis has changed and that the prior diagnosis was clearly erroneous
follow the procedures for severance of SC as directed at M21-1, Part III, Subpart iv, 8.E.2.
Reference:  For more information on special procedures for handling severance of SC for disabilities granted under 38 CFR 3.317, see M21-1, Part IV, Subpart ii, 2.D.3.e-f.
medical evidence shows that the change in diagnosis represents a progression of the SC disability
update the diagnosis to reflect the current diagnosis as well as the historical diagnosis.
Example:  right knee arthritis (previously diagnosed as strain)
medical evidence shows that the change in diagnosis represents a separate disability and reflects that the SC disability still exists
obtain adequate evidence to evaluate the SC disability and separate the symptoms of the SC disability from the non-service-connected (NSC) disability.
Reference:  For more information on assigning a disability evaluation when the symptoms of an SC and NSC disability cannot be separated, seeM21-1, Part III, Subpart iv, 5.B.2.c.

2.  Determining a Disability Evaluation Based on Rating Schedule Criteria


Introduction


Change Date

November 21, 2018

III.iv.5.B.2.a.  Relationships Within Evaluation Criteria 

In determining which fact findings are required to make a legal conclusion,generally if regulatory criteria are
  • conjunctive (separated by “and”), all of the conjoined criteria must be met for the legal standard of entitlement to be met, or
  • disjunctive (separated by “or”), any one of the alternative criteria will support entitlement to the benefit.
The manner in which evaluation criteria relate to the lower and higher evaluation criteria within the same DC is also relevant when assigning evaluations.
  • Cumulative rating criteria is characterized by the lower evaluations building upon each other.
  • Successive rating criteria is a type of cumulative criteria characterized by higher evaluations for increased duration of symptoms.
  • Variable rating criteria is characterized by a lack of relationship between one set of evaluation criteria to the higher or lower evaluation criteria for the same DC.  In variable rating criteria, symptoms could potentially meet the criteria required for a higher evaluation without satisfying the criteria for a lesser evaluation.
Important:
  • Conjunctive language is always subject to the reasonable doubt principles in 38 CFR 3.102 when the evidence is in relative equipoise or when there is a question regarding degree of disability.
  • 38 CFR 4.21 does not apply to conjunctive rating criteria.
  • 38 CFR 4.7 is an important consideration when evaluating a disability using variable rating criteria.
References:  For more information on

III.iv.5.B.2.b.  Separating Individual Findings and Pyramiding

Do not separate individual findings when these findings, in their entirety, constitute one disability.  This is
  • fundamental to the proper evaluation of a disability, and
  • consistent with the prohibition against pyramiding under 38 CFR 4.14.
Note:  Pyramiding is rating the same physical manifestations of a disability under two separate DCs.  Separate evaluations are warranted where none of the symptomatology for any one condition duplicates or overlaps another (Esteban v. Brown, 6 Vet.App. 259, 261-62 (1994)).
 
Example 1:  A disability of a tibia with malunion, limitation of dorsiflexion, eversion, inversion, and traumatic arthritis of the ankle would be evaluated under one DC, 38 CFR 4.71a, DC 5262, in accordance with the effect upon ankle function, with no separate evaluation for the limitation of motion or traumatic arthritis.
 
Example 2:  A shoulder disability manifest as limitation of motion of the arm is entitled to a single rating under 38 CFR 4.71a, DC 5201, regardless of how many planes of motion are affected.
 
Example 3:  Instability of the knee (38 CFR 4.71a, DC 5257) may be evaluated separately from limited motion of the knee due to arthritis (38 CFR 4.71a, DC 5003).
 
Reference:  For more information on separating individual findings for knee disabilities, see

III.iv.5.B.2.c. Evaluating Symptoms of SC and NSC Disabilities That Cannot Be Separated

If it is not possible to separate the effects of an NSC condition from those of an SC condition, reasonable doubt, under 38 CFR 3.102, should be resolved in the Veteran’s favor with regard to whether certain signs and symptoms can be attributed to the SC condition.
When evaluating an SC disability for rating purposes, if it is not possible to differentiate the Veteran’s symptoms from an SC and NSC disability, all symptoms should be deemed related to the SC disability and rated accordingly.
 
Important:
  • Although the combined symptoms of the SC and NSC disabilities are used to support the assigned disability evaluation, the NSC disability is not considered SC.
  • The decision that the symptoms of the SC and NSC disabilities cannot be separated is a medical determination.  When the record is not clear as to whether the symptoms can be separated, obtain a medical opinion for clarification.
References:  For more information on

III.iv.5.B.2.d.  Considering Rating Criteria That Utilize “Such As” 

The use of the phrase “such symptoms as,” or a similar phrase, followed by a list of examples, provides guidance as to the variety of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and condition.
Reference:  For more information on the use of the term “such symptoms as” in the schedule of ratings for mental disorders, see Mauerhan v. Principi, 16 Vet.App. 436 (2002).

III.iv.5.B.2.e.  Choosing Between Two Levels of Evaluation  

38 CFR 4.7 provides that where there is a question upon review of the evidence as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.
 
Important:  38 CFR 4.7 does not preclude application of the reasonable doubt doctrine.  When the decision maker concludes that the facts equally (or approximately equally) support two levels of evaluation such that each is as likely as not warranted, the higher evaluation will be awarded.
 
Reference:  For more information on the application of variable, cumulative, and successive rating criteria and when 38 CFR 4.7 applies, see M21-1, Part III, Subpart iv, 5.B.2.a.

III.iv.5.B.2.f. Assignment of Zero Percent Evaluations

In every instance where the schedule does not provide a zero-percent evaluation for a DC, a zero-percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.
Reference:  For more information on assignment of zero-percent evaluations, see38 CFR 4.31.

III.iv.5.B.2.g.  Assigning a 10-Percent Evaluation for Multiple Noncompensable SC Disabilities

Under 38 CFR 3.324, a single 10-percent evaluation may be assigned when all of the following criteria are met:
  • a Veteran is suffering from two or more separate permanent noncompensable SC disabilities
  • there are no other compensable SC disabilities, and
  • the SC disabilities clearly interfere with normal employability.
Notes:
  • Payment of compensation at the 10-percent rate cannot be made in combination with any other compensable disability evaluation.
  • When entitlement to a 10-percent rating has been established but a subsequent rating decision establishes entitlement to a compensable evaluation for an SC disability, the grant of the compensable SC evaluation is considered the greater benefit.  It is unnecessary to close out the past grant of entitlement under 38 CFR 3.324, as VBMS recognizes payment for the compensable disability as the greater benefit.
Reference:  For  more information on when to put into issue in a rating decision and decide entitlement to a 10-percent evaluation under 38 CFR 3.324, see M21-1, Part III, Subpart iv, 6.B.2.b.

III.iv.5.B.2.h.Extra-schedular Evaluations Under 38 CFR 3.321(b)(1) 

38 CFR 3.321(b)(1) provides for referral for extra-schedular consideration based on the impact of a single disability.
Refer a claim to the Director of Compensation Service for a determination on whether an extra-schedular rating may be assigned when both of the following criteria are met:
  • the established schedular criteria are inadequate to describe the severity and symptoms of the claimant’s disability, and
  • there are other indications of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization.
Notes:
  • Do not routinely refer a claimant’s request for extra-schedular consideration to the Director of Compensation Service.  When a claimant requests extra-schedular consideration for an SC disability, only refer the claim if the referral criteria specified above are met.
  • Do not dismiss the potential for extra-schedular referral based solely on the availability of a higher schedular disability evaluation.  The availability of a higher schedular rating is irrelevant in determining whether a request for extra-schedular evaluation is warranted unless the disability is evaluated as 100-percent disabling.  A disability may be considered for extra-schedular evaluation when less than the maximum available schedular evaluation is assigned as long as all other criteria for referral, as discussed above, have been met.
  • When the schedular rating criteria contemplates the symptoms necessitating the use of assistive devices as well as the severity of those symptoms, referral for extra-schedular consideration under 38 CFR 3.321(b)(1) is not warranted based solely on the use of assistive devices.
References:  For more information on

III.iv.5.B.2.i.  Determining the Retroactive Applicability of a New Statute or Regulation

The provisions of a statutory or regulatory change to rating schedule criteria for evaluating disabilities are generally not retroactive unless retroactive applicability is specifically directed.  When a change that revises the rating schedule’s evaluation criteria does not specify the intent for retroactive application, assume that the new criteria do not apply prior to the effective date of the corresponding regulatory change.
Note:  For claims pending on the date that a rating schedule provision is changed, it is usually appropriate to apply the
  • old regulation in assigning disability evaluations for periods that precede the date of the change, and
  • new regulation in evaluating a disability for any period that begins on or after the date of the change.  After the effective date of the regulation change
 References:  For more information on

III.iv.5.B.2.j.  Effect of Rating Schedule Readjustment

When the rating schedule is readjusted, in no event shall the readjustment cause a Veteran’s disability evaluation in effect on the effective date of the readjustment to be reduced unless an improvement in the disability is shown to have occurred, even if the combined evaluation is not reduced, as indicated in VAOPGCPREC 19-1992, September 29, 1992, and 38 U.S.C. 1155.
This precedent opinion also provided that when a Veteran is receiving the minimum evaluation for a condition at the time the rating schedule is revised, and the condition subsequently undergoes an exacerbation resulting in a higher evaluation, if the condition returns to the same, symptom-free status it was in at the time of the rating schedule change, a noncompensable evaluation under the new criteria will be assigned.
 
Note:  The February 3, 1988, revision of criteria for rating psychiatric disorders is considered a liberalizing law/VA issue as indicated in Sabol v. Derwinski, U.S. Vet.App. No. 90-1123 (1992), 38 U.S.C. 5110(g)38 CFR 3.114, and VAOPGCPREC 19-1992.
 
Reference:  For more information on protection and rating schedule changes, seeM21-1, Part III, Subpart iv, 8.C.4.

III.iv.5.B.2.k.  Assigning Staged Ratings

The term staged rating refers to the assignment of separate ratings for separate periods of time based on the facts found.
38 CFR 3.105(e) does not apply to a staged rating.  Additionally, 38 CFR 3.105(e)is inapplicable to disabilities rated under DCs containing a note that “any change in evaluation . . . shall be subject to the provisions of 38 CFR 3.105(e)” if the reduction is part of a staged rating assigned in the grant of an original claim for such disability.
Reference:  For more information on assigning staged ratings, see

III.iv.5.B.2.l.  Use of the Evaluation Builder

Use of the Evaluation Builder in assigning disability evaluations in claims for compensation is mandatory.  The Evaluation Builder is programmed to represent accurate policy and procedure and should not be overridden unless specific authorization exists for doing so.
When a change in policy or procedure is officially issued in either regulatory, policy, or procedural guidance and causes the Evaluation Builder to generate inaccurate results for a temporary period of time until updates can be made, decision makers are required to override the Evaluation Builder or use appropriate workarounds so that disabilities are accurately evaluated in accordance with published guidance.  In these situations, decision makers will be directed to utilize overrides or workarounds.

3.  Principles of Disability Evaluation for Specific Conditions


Introduction


Change Date

January 4, 2018

III.iv.5.B.3.a. Conceding Permanence for Evaluations 

38 CFR 3.327(b)(2), in part, directs that no periodic examination will be ordered
  • if the disability is established as static
  • when findings and symptoms shown by examinations and hospital reports have persisted without material improvement for a period of five years or more, and/or
  • where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement.
When evidence indicates that cancer or other similarly chronic and progressive disabilities are not expected to improve, concede permanence for the disability evaluation.  Examples of indicators suggesting the likelihood that the disability status is permanent include but are not limited to
  • a prescription for palliative treatment only for a cancer diagnosis
  • a prescription for hospice care, or
  • an indicator in medical evidence that the condition is considered terminal.
Note:  If eligibility for Dependents Educational Assistance (DEA) is not being established as an ancillary benefit in the same rating decision (for example, when eligibility for DEA has been granted in a prior decision or is not warranted for a grant of benefits under 38 U.S.C. 1151), add free text to the rating narrative indicating that the assigned disability evaluation is considered permanent.
 
References:  For more information on

III.iv.5.B.3.b.  Addressing the P&T Status of Malignancies

VBMS-R’s system-generated language for evaluating totally disabling SC malignancies usually includes reference to the scheduling of a mandatory review examination intended to determine recurrence or residual disability.
When, however, P&T status of the SC malignancy has been conceded in light of the guidance in M21-1, Part III, Subpart iv, 5.B.3.a, edit the rating decision narrative by replacing the system-generated text displayed in the left column of the table below with the text displayed in the right column.
VBMS-R System-Generated Text
Replacement Text
A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure.  Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR §3.105(e).  If there has been no local recurrence or metastasis, you will be rated on residuals.
The medical evidence shows that permanence of this disability has been established.  Consequently, no future VA examination will be requested.
References:  For more information on assigning P&T evaluations for

III.iv.5.B.3.c.  Evaluating Malignant Neoplasms and Associated Impairments 

Use the table below to determine whether a symptom or condition associated with an active malignant neoplasm may be separately evaluated during the period in which a 100-percent evaluation is warranted for the active malignant neoplasm.
If the condition is a …
Then …
purely symptomatic complaint arising from the malignant neoplasm
do not assign a separate evaluation.
symptom arising from treatment for the malignant neoplasm
do not assign a separate evaluation.
diagnosed disability deemed to be caused by or related to the malignant neoplasm
  • apply 38 CFR 4.14 to determine whether the symptoms of the diagnosed disability are considered in the 100-percent evaluation for the malignant neoplasm
  • review the evaluation criteria for both conditions and other applicable provisions to determine whether separate evaluations are allowable, and
  • if the pyramiding rule in 38 CFR 4.14 has not been violated and separate evaluations are otherwise allowable, assign a separate evaluation.
Reference:  For examples of evaluating diagnosed disabilities due to malignant neoplasms, see M21-1, Part III, Subpart iv, 5.B.3.d.
metastatic malignant neoplasm affecting a different body system than is affected by the primary SC neoplasm
assign a separate evaluation.
Note:  For the purpose of determining entitlement to special monthly compensation (SMC) at the statutory housebound rate under 38 CFR 3.350(i)(1), carcinoma that has metastasized and involves two different body systems would generally be considered separate and distinct.  The fact that there is an etiological relationship does not preclude considering the impact and effects as separate and distinct.
metastatic malignant neoplasm affecting the same body system as is affected by the primary SC neoplasm
do not assign a separate evaluation.
Note:  This guidance is applicable when language within a particular DC refers tomalignant neoplasms in plural.
 
Note:  If doubt arises as to the medical cause or association of any symptoms or diagnosis, a medical opinion should be requested for clarification.
 
References:  For more information on

III.iv.5.B.3.d.  Examples of Evaluating Diagnosed Disabilities Due to Malignant Neoplasms

Example 1:  SC for anxiety disorder claimed and diagnosed as secondary to active lung cancer may be granted and separately evaluated.
Example 2:  A Veteran is SC with a 100-percent evaluation assigned for active renal cancer.  He undergoes a nephrectomy as a part of the treatment for the renal cancer.  38 CFR 4.115b, DC 7528 directs that renal cancer is evaluated as active malignancy and its residuals are evaluated based on either voiding dysfunction or renal dysfunction.  Since a nephrectomy is evaluated either with the minimum compensable evaluation or as renal dysfunction under 38 CFR 4.115b, DC 7500, the rating schedule recognizes that renal dysfunction is within the predominant symptomatology of both disabilities.  Since both criteria contemplate renal dysfunction, the nephrectomy cannot be separately evaluated.
Example 3:  A Veteran is SC with a 100-percent evaluation assigned for active renal cancer.  He is diagnosed with recurrent pyelonephritis which is characterized by symptoms of recurrent urinary tract infection.  The pyelonephritis is identified as a complication of the renal cancer.  38 CFR 4.115b, DC 7528 directs that renal cancer is evaluated as active malignancy and its residuals are evaluated based on either voiding dysfunction or renal dysfunction.  Since the pyelonephritis is characterized by recurrent urinary tract infection, which is not considered within the criteria for evaluating malignant neoplasms of the genitourinary system, a separate evaluation may be assigned under 38 CFR 4.115b, DC 7504 utilizing the urinary tract infection symptoms.
Example 4:  A Veteran is SC with a 100-percent evaluation assigned under 38 CFR 4.114, DC 7343 for active colon cancer.  The Veteran sustained a nerve injury during surgery for the colon cancer resulting in impairment of anal sphincter control with incontinence.  Since the symptoms of impairment of sphincter control with incontinence are due to a separately diagnosed disability (the nerve injury), pyramiding rules are not violated, and 38 CFR 4.114 does not prohibit separate evaluations for these coexisting digestive system disabilities, a separate evaluation may be assigned for the nerve injury with impairment of sphincter control under 38 CFR 4.114, DC 7332.

III.iv.5.B.3.e. Evaluating an SC Disability Eliminated by NSC Amputation

Where an NSC cause necessitates amputation of an extremity resulting in elimination of an SC disability distal to the site of the amputation, do not sever SC for or reduce the evaluation of the SC disability.
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