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M21-1, Part III, Subpart iv, Chapter 6, Section B – Determining the Issues

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5

1.  Types of Issues and Claims


Introduction

This topic contains information about the various types of issues and claims, including

Change Date

February 28, 2019

III.iv.6.B.1.a.  Recognizing Issues and Claims When Preparing a Rating Decision

When preparing a rating decision, the decision maker must recognize, develop, clarify, and/or decide all issues and claims, whether they are
  • expressly claimed
  • within scope of an expressly claimed issue, such as
    • complications of the claimed condition, or
    • unclaimed subordinate issues and ancillary benefits, or
  • compensation entitlement issues that arise based on the Department of Veterans Affairs’ (VA’s) review of evidence, such as
    • reductions of service-connected (SC) disability evaluation
    • clear and unmistakable errors (CUEs)
    • entitlement under the Nehmer stipulation, or
    • competency reviews.
Note:  Within-scope issues encompass
  • additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities, and
  • any ancillary benefit(s) or other unclaimed subordinate issues not expressly raised by the claimant that are related and arise as a result of the adjudication of a claimed issue.
References:  For more information on

III.iv.6.B.1.b.  Definition and Example:  Expressly Claimed Issue 

An expressly claimed issue is defined as when a disability and the benefit sought are both explicitly identified on a standardized VA form.
References:  For more information on

III.iv.6.B.1.c.  Definition and Example: Issues Within Scope

An issue within scope is one that is not explicitly identified by the claimant on a one of the forms listed in M21-1, Part III, Subpart ii, 2.B.1.b, but is identified upon review of the claims folder during the decision-making process for an expressly claimed issue.  An issue within scope arises based on a sympathetic reading of the claimant’s statements and/or evidence of record.  It encompasses such things as entitlement to

  • any ancillary benefits that arise as a result of the adjudication decision, and
  • additional benefits for complications of an expressly claimed condition.
Note:  VA does not expect, nor does the law require, claimants to articulate with medical precision the disabilities for which compensation is sought.  Veterans regularly claim disability compensation for a specific clinical entity and ultimately establish service connection (SC) for a similar, but clinically distinct, condition.
Example 1:  VA may, in developing a Veteran’s claim for SC for sinusitis, provide the Veteran with an examination that renders a diagnosis of a similar condition, such as allergic rhinitis, rather than sinusitis.
Result:  In the event that the examination is otherwise sufficient for rating purposes and the condition is associated with service, the decision maker awards SC for allergic rhinitis as within the scope of the claim for sinusitis.
Example 2:  The Veteran’s VA examination shows that his SC) posttraumatic stress disorder (PTSD) warrants an increase to a 70-percent evaluation at the examination.  In addition, the Veteran reported that he has been fired from several jobs due to his inability to deal with stress, and the VA examiner identified the Veteran’s stress management problem as a symptom of his PTSD.
Result:  The decision maker addresses the issue of individual unemployability (IU) in the rating decision.
Example 3:  The Veteran submits a claim for SC for right knee strain.  The evidence of record, including the resulting examination, shows that SC for the knee strain is warranted.  The examination also reveals a knee scar that resulted from a post-service arthroscopy procedure.  The examination indicates the arthroscopy was associated with the SC right knee strain.  The examination also shows that the scar is not painful or unstable and is less than 6 square inches.
Result:  In the event that the examination is otherwise sufficient for rating purposes, the decision maker awards SC for the knee condition and separate SC for the noncompensable knee scar as within the scope of the claim for SC for right knee strain.
References:  For more information on

III.iv.6.B.1.d.  Definition and Example: Unclaimed Subordinate Issues

Unclaimed subordinate issues are issues derived from the consideration or outcome of related issues.  Often, the primary and subordinate issues share the same fact pattern.
Example:  SC for treatment purposes under 38 U.S.C. 1702 based on a denial of SC for compensation purposes is considered a subordinate issue
  • for a psychosis based on wartime service, or
  • for any mental disorder based on Gulf War service, and
  • when entitlement is shown under 38 U.S.C. 1702.
References:  For more information on

III.iv.6.B.1.e.  Definition and Example: Ancillary Benefits

Ancillary benefits are secondary benefits that are considered when evaluating claims for
  • compensation
  • pension, or
  • Dependency and Indemnity Compensation (DIC).
Note:  Eligibility for ancillary benefits is derived from a Veteran’s entitlement to disability benefits or the circumstances of the Veteran’s death.
Example:  The Veteran is granted a 100-percent evaluation for amyotrophic lateral sclerosis (ALS) and complications, and the VA examination shows that he requires the daily assistance of his wife to attend to his activities of daily living.
Result:  The rating activity addresses the issues of aid and attendance (A&A), Dependents’ Educational Assistance (DEA), specially adapted housing (SAH), and automobile allowance and adaptive equipment in the rating decision.
Reference:  For more information on subordinate issues and ancillary benefits, seeM21-1, Part III, Subpart iv, 6.B.2.

III.iv.6.B.1.f.  Definition and Example:  Compensation Entitlement Issues 

Compensation entitlement issues arise upon VA’s review of evidence and do not require a claim from the beneficiary in order to be brought to issue.  This includes issues such as

  • reductions of SC disability evaluations
  • CUEs
  • entitlement under the Nehmer stipulation, or
  • competency reviews.
Situation:  A Veteran, who is SC for bilateral knee arthritis, claims an increased disability evaluation for his left knee.  The examination includes a full evaluation of both knees.  The Veteran’s SC right knee, which has been evaluated as 30-percent disabling for three years, shows improvement consistent with 38 CFR 3.344 andM21-1, Part III, Subpart iv, 8.D.1.b.  The treatment reports are consistent with the examination findings.
Result:  The rating decides the expressly claimed left knee evaluation and proposes a reduced evaluation for the right knee, as the overall combined evaluation will be reduced.
Rationale:  The examination report and treatment records both show the condition has improved and warrants reduction.  The evaluation has been in effect for less than five years and may be reduced on one examination.  As the combined evaluation is affected, the regional office (RO) must apply the provisions of 38 CFR 3.105(e) and propose the reduction.
Situation:  A Veteran files a claim for an increased disability evaluation for his SC lumbar strain.  While processing the claim, the rating activity notices an earlier effective date under the Nehmer stipulation is warranted for the SC ischemic heart disease based on treatment records that were in file at the time a prior claim was decided.
Result:  The rating decision decides both the expressly claimed lumbar spine issue and awards entitlement to an earlier effective date under the Nehmer stipulation.
Rationale:  Claimants do not have to file claims for consideration of an earlier effective date under the Nehmer stipulation.  As records support entitlement, the decision maker should award the earlier effective date under 38 CFR 3.816.
Reference:  For more information on

III.iv.6.B.1.g.  Considering Intent of New Claims

Avoid confusing the “sympathetic reading” doctrine and within-scope analysis discussed in M21-1, Part III, Subpart iv, 6.B.1.c with a reading that
  • misconstrues or makes generalized assumptions about the Veteran’s intent in contending a specific disability, and/or
  • narrows the scope of potential for the claim’s consideration.
Unless adjudicative judgment and/or review of available evidence suggests that an alternative reading would better serve the Veteran and result in maximizing the potential for benefit entitlement, decide each expressly claimed issue on its factual merits.
Example 1:  A Veteran who received an Afghanistan Campaign Medal was previously denied SC for depression on the basis that no mental health symptoms became manifest during service.  The decision notice communicating the denial was dated August 17, 2016.  On January 5, 2018, VA receives a claim for SC for PTSD.
Result:   The RO must decide the PTSD claim on its individual merits, without regard to the previous denial of SC for depression, in spite of the contentions’ symptomatic similarities, as
  • the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), does not require that all mental health claims be treated as one
  • 38 CFR 3.304(f) provides additional means by which SC for PTSD can be established, and
  • receipt of the Afghanistan Campaign Medal would generally satisfy the requirement for a stressor involving service in an area of potential hostile military or terrorist activity.
Example 2:  A Veteran who is currently SC for bronchial asthma, evaluated as 30-percent disabling, files a claim for SC for obstructive sleep apnea requiring the use of a continuous positive airway pressure (CPAP) device.
Result:  The RO must decide the sleep apnea claim on its individual merits and not generally assume that the Veteran, in contending a separate respiratory condition, intended to seek an increased evaluation for her SC asthma.  Although 38 CFR 4.96(a) would prohibit the assignment of separate compensable evaluations for both asthma and sleep apnea if SC for the latter were ultimately awarded, 38 CFR 4.97, diagnostic code 6847, may permit assignment of a greater collective evaluation in light of the required CPAP use.
References:  For more information on

III.iv.6.B.1.h.  Clarifying Issues and Claims

Whenever the disability claimed is not clearly identified, ensure that the claim clarification procedures outlined in M21-1, Part III, Subpart iii, 1.B.1.c have been followed and documented prior to issuing a rating decision.

2.  Considering Issues Within Scope of a Claim


Introduction

This topic contains information about considering issues within scope of a claim, including

Change Date

January 8, 2018

III.iv.6.B.2.a.  Types of Ancillary Benefits

Some types of ancillary benefits are

Reference:  For more information on ancillary benefits, see


III.iv.6.B.2.b.  When to Address Subordinate Issues and Ancillary Benefits

Use the table below to determine when to address entitlement to subordinate issues and ancillary benefits in a rating decision.
Note:  In general, address entitlement to a subordinate issue or ancillary benefit only when entitlement can be awarded.  Do not put a benefit at issue merely to deny it.
Exception:  Consider a 10-percent evaluation under 38 CFR 3.324 in all applicable ratings regardless of whether the benefit is awarded or denied.
If … Then address entitlement to …
there is a severe degree of disability involving

  • the loss or loss of use (L/LOU) of an extremity or sensory organ, or
  • any other functional loss providing entitlement to special monthly compensation (SMC) under 38 CFR 3.350

SMC.

a permanent and total (P&T) SC evaluation is established

  • on a schedular basis, or
  • based on entitlement to IU
DEA.
Note:  Also consider entitlement to DEA whenever permanency of a total evaluation is subsequently established. Do not put entitlement at issue merely to deny it.
References:  For more information on
a single 100-percent evaluation is assigned in a compensation or pension case
A&A.
Note:  Do not put A&A benefits at issue if the evidence does not show entitlement.
  • a single 100-percent evaluation is assigned in a compensation or pension case, and
  • A&A is not payable
housebound.
Note:  Do not address entitlement to housebound benefits if the evidence does not show entitlement exists.
retroactive Veterans Pension is not claimed, but a qualifying disability may exist
retroactive benefits.
Note:  Advise the claimant that retroactive benefits may be payable.
Reference:  For more information on retroactive pensions, see 38 CFR 3.400(b)(1)(ii)(B).
a pension claimant fails to meet the schedular requirements for P&T disability extra-schedular consideration under 38 CFR 3.321(b)(2).
a Veteran has

  • no compensable evaluation(s), and
  • more than one non-compensable evaluation
a 10-percent rating under 38 CFR 3.324.
Important:
  • This benefit must be considered in all applicable ratings, including confirmed ratings, even when entitlement is denied.
  • An applicable rating is one in which a noncompensable SC evaluation is assigned or confirmed.
  • The guidance expressed in this row applies without regard to whether or not the Veteran is in receipt of SMC separate and distinct from his/her non-compensable schedular evaluations.
a claim for SC is denied for

  • a psychosis based on wartime service, or
  • any mental disorder based on Gulf War service

Reference:  For more information on periods of war, see 38 CFR 3.2.

treatment under 38 U.S.C. 1702.
Note:  Do not address entitlement if the evidence does not show entitlement exists.
  • there is a reasonable probability that the Veteran’s death may be SC, whether from
    • disease
    • injury, or
    • self-infliction, and
  • a claim for survivors benefits is received
DIC.
  • at the time of death the Veteran was rated 100-percent disabled due to SC disabilities or entitled to IU, and
  • a claim for survivors benefits is received
a rating initially establishes SC for P&T disability due to

  • the L/LOU of
    • one lower extremity, requiring the use of braces, crutches, canes, or a wheelchair for mobility due to
      • the L/LOU of the other lower extremity
      • the L/LOU of an upper extremity, or
      • another organic disease or injury that affects balance or propulsion
    • one lower extremity plus bilateral vision loss, with only light perception, or
    • both upper extremities such as to preclude use of the arms at or above the elbows
  • full thickness or subdermal burns that have resulted in contractures with limitation of motion of
    • two or more extremities, or
    • at least one extremity and the trunk, or
  • ALS
SAH.
Reference:  For more information on entitlement to SAH, see
a rating initially establishes SC for P&T disability due to

  • bilateral vision loss, with visual acuity of 20/200 or less
  • L/LOU of both hands
  • full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or
  • residuals of an inhalation injury, including, but not limited to
    • pulmonary fibrosis
    • asthma, and
    • chronic obstructive pulmonary disease
SHA award.
Reference:  For more information on entitlement to the SHA award, see
a rating initially establishes SC for P&T disability due to

  • L/LOU of a hand or foot
  • bilateral vision loss with corrected acuity 20/200 or worse in the better eye
  • bilateral vision loss with field constricted to 20 degrees in the better eye
  • severe burn injury with deep partial thickness or full thickness burns resulting in scar formation that causes contractures and limit motion of one or more extremities or the trunk and preclude effective operation of an automobile, or
  • ALS
  • automobile, and
  • automobile adaptive equipment.

Reference:  For more information on entitlement to an automobile or automobile adaptive equipment, see

SC is established for ankylosis of the hip or knee automobile adaptive equipment.
  • SC is established for diabetes mellitus, and
  • there is a diagnosis of hypertension
SC for hypertension as secondary to diabetes mellitus only as described inM21-1, Part III, Subpart iv, 4.M.2.f.
  • the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and
  • there is evidence in the Veteran’s claims folder or under VA control that indicates he/she may be unemployable due to SC disability
IU.
Reference:  For more information on reasonably raised claims for IU, see
Reference:  For information on raising the issue of competency while evaluating other evidence, see M21-1, Part III, Subpart iv, 8.A.2.a.

III.iv.6.B.2.c.  Considering Complications of an Expressly Claimed Issue

When deciding expressly claimed issues, decision makers must consider entitlement to any complications that are within scope of the claim, including those identified by the rating criteria for that condition in 38 CFR Part 4.  A specific claim is not required to award a within-scope complication.
Decision makers will consider all lay and medical evidence of record in order to adjudicate entitlement to any additional benefits for complications of a claimed issue, such as:
  • complications of diabetes mellitus
  • residuals of cancer or treatment for the SC cancer
  • scars as the result of surgical intervention for an SC disability
  • neurological disabilities related to the spine
  • complications of progressive disorders, such as
    • ALS, or
    • multiple sclerosis (MS), or
  • constitutional symptoms caused by systemic disorders, such as
    • rheumatoid arthritis (RA), or
    • ankylosing spondylitis.
Notes:
  • The above list is not intended to be comprehensive.  Decision makers must consider the evidence in each case and determine whether additional issues are within scope.
  • Entitlement to SC for the complication, unless explicitly claimed, should only be placed at issue when entitlement is established.  When entitlement is not established, but relevant evidence is present, discussing the relevant evidence is appropriate for inclusion in the Reasons for Decision of the expressly claimed issue.
  • When evidence shows the presence of a potential complication, decision makers must ensure there is adequate medical evidence, including an examination, if needed, in order to determine entitlement.
References:  For more information on

3.  Qualifying Disabilities Under 38 CFR 3.383


Introduction

This topic contains information about qualifying disabilities under 38 CFR 3.383, including

Change Date

August 3, 2011

III.iv.6.B.3.a.  Provisions of 38 CFR 3.383

Under 38 CFR 3.383, special consideration for paired organs and extremities is payable for various combinations of SC and non-service-connected (NSC) disabilities, provided the NSC disability was not the result of the Veteran’s own willful misconduct.

III.iv.6.B.3.b.  Qualifying Disabilities Under 38 CFR 3.383

Qualifying disabilities for special consideration under 38 CFR 3.383 include

  • SC impairment of vision in one eye and NSC impairment of vision in the other eye when
    • visual acuity of each eye is rated at 20/200 or less, or
    • the peripheral field of vision for each eye is 20 degrees or less
  • SC L/LOU of one kidney and NSC impairment of the other kidney
  • SC hearing impairment compensable to a degree of 10 percent or more in one ear and NSC hearing impairment that meets the provisions of 38 CFR 3.385 in the other ear
  • SC L/LOU of one hand and NSC L/LOU of the other hand
  • SC L/LOU of one foot and NSC L/LOU of the other foot, and
  • permanent SC disability of one lung, rated 50-percent or more disabling, and NSC disability of the other lung.

4.  Extra-Schedular Consideration


Introduction

This topic contains information about extra-schedular consideration, including

Change Date

January 8, 2018

III.iv.6.B.4.a.  Extra-Schedular Evaluations in Compensation Claims

Consider the issue of entitlement to an extra-schedular evaluation in compensation claims under
  • 38 CFR 3.321(b)(1) only where
    • the issue is expressly raised by the Veteran, or
    • there is evidence of exceptional or unusual circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to disability (for example, marked interference with employment or frequent periods of hospitalization), and
  • 38 CFR 4.16(b) whenever
    • the issue is expressly stated
    • there is evidence that the Veteran may be unable to secure or follow a substantially gainful occupation because of an SC disability, and
    • total disability based on IU cannot be awarded on a schedular basis.
Important:  If the Veteran explicitly raises the issue of extra-schedular entitlement, but the general criteria for referring the claim to Compensation Service are not met, the decision and decision notice must include an explanation of that determination.
Reference:  For more information on

III.iv.6.B.4.b.  Approving Extra-Schedular Evaluations in Compensation Claims

Only the Director of the Compensation Service (211B) may approve extra-schedular evaluations in compensation claims submitted under 38 CFR 3.321(b)(1)and 38 CFR 4.16(b).

III.iv.6.B.4.c.  When to Submit Compensation Claims for Extra-Schedular Consideration

Submit compensation claims to Compensation Service for extra-schedular consideration under 38 CFR 3.321(b)(1) or 38 CFR 4.16(b) if a(n)
  • unusual or exceptional disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, renders the schedular evaluation inadequate for an individual disability, or
  • total rating cannot be assigned solely because
    • the minimum schedular requirements of 38 CFR 4.16 are not met, and
    • a total rating is considered warranted.
Important:  ROs are only required to refer claims for extra-schedular consideration when that issue, whether or not argued by the claimant, is reasonably substantiated by the evidence of record.
References:  For more information on

III.iv.6.B.4.d.  Procedure for Referring Claims for Extra-Schedular Consideration

Follow the steps in the table below when referring claims for extra-schedular consideration under either 38 CFR 3.321(b)(1) or 38 CFR 4.16(b).
Step
Action
1
Complete the appropriate memorandum as shown in M21-1, Part III, Subpart iv, 6.B.4.f or g.
Note:  When referring a claim to Compensation Service for consideration of both 38 CFR 3.321(b)(1) or 38 CFR 4.16(b), the request may be submitted under the same memo as long as the memo fully discusses both extra-schedular provisions and provides recommendations for both.
2
3
Upload the memorandum and all other relevant documents to the Veteran’s electronic claims folder (eFolder) in the Veterans Benefits Management System (VBMS).
4
Use the table below to refer the claim to Compensation Service for extra-schedular consideration.
If the claim is …
Then …
processed in the National Work Queue (NWQ) environment
assign the Compensation Service Review – Extraschedular special issue indicator, and Compensation Service Reviewtracked item in accordance with the NWQ Phase 1 &2 Playbook to ensure proper routing to Compensation Service.
not processed in the NWQ environment
Note:  The e-mail subject line must readExtra-schedular review requested.
References:  For more information on

III.iv.6.B.4.e.  Extra-Schedular Consideration in Pension Claims

In pension claims, consider the issue of entitlement to an extra-schedular evaluation under 38 CFR 3.321(b)(2) whenever a Veteran fails to meet the schedular requirements for P&T disability.  If approval is recommended, forward the rating decision and claims folder to the Veterans Service Center Manager, Pension Management Center Manager, or designee for signature.

III.iv.6.B.4.f.  Exhibit 1:  38 CFR 3.321(b)(1) Referral Memorandum
This exhibit contains a sample of the memorandum completed for 38 CFR 3.321(b)(1) referrals.
DEPARTMENT OF VETERANS AFFAIRS
[RO Name
 RO Address]
[Date]
Director                                                           In Rely Refer To:
Compensation Service (211B)                         [RO #]
Department of Veterans Affairs                        [File Number]
Central Office                                                   [Veteran’s Name]
810 Vermont Ave. NW
Washington, DC 20420
SUBJECT:  Administrative Review for Entitlement to Increased Evaluation in Accordance with 38 CFR § 3.321(b)(1)
BACKGROUND INFORMATION:  [List service information, such as branch, dates, and place(s) of service.]
STATEMENT OF ISSUE:  [State specific review requested, including any relevant time period and whether the issue is part of a Board of Veterans’ Appeals (BVA) remand.]
Example:  Review for entitlement to an increased evaluation on an extra-schedular basis for bilateral hearing loss.
EVIDENCE:  [List the evidence used for this review.]
Example:
  • Rating decision dated August 1, 2008
  • BVA decision/remand dated November 1, 2015
  • VA examinations dated June 7, 2008, July 10, 2010, September 12, 2015, and June 20, 2016 
DISCUSSION:  [Discuss medical evidence in detail for each SC disability related to the request for all pertinent time periods, to include medical evidence found within the file and the BVA remand.]
Example
Service connection has been established for bilateral hearing loss.  This condition has been evaluated at zero percent disabling since January 6, 2008.  The Veteran is requesting an increased evaluation for this condition. BVA remanded this issue on November 1, 2015, and directed that the case be referred for consideration of entitlement to an increased evaluation on an extra-schedular basis from January 6, 2008, to present. 
VA examinations dated June 7, 2008, July 10, 2010, and September 12, 2015, document that the Veteran’s hearing loss has been appropriately evaluated at zero percent disabling for the time period of this review.  Speech recognition scores were 96% for the right ear and 94% for the left ear.    
On June 20, 2016, another examination was performed.  Testing revealed a slight deterioration in the bilateral hearing loss; however this change is not sufficient to warrant an increased evaluation on a schedular basis.  Speech recognition scores remained at previous levels.  The examiner stated that the Veteran’s hearing loss would not preclude employment.  The examiner further stated that the Veteran would have some difficulty working in situations with a lot of background noise.
Evidence shows that the Veteran attended college for two years and worked as an engineer following separation from service.  He retired from this position in January of 2012, after 23 years.  Evidence does not show that the bilateral hearing loss interfered with employment. 
Extra-schedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. No unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical.  The evidentiary record does not demonstrate that the symptomatology consistently associated with the service-connected bilateral hearing loss supports an increased evaluation on a schedular or extra-schedular basis for any time period.
RECOMMENDATION:  [Provide a recommendation, to include an effective date, if applicable.]
Example:  Deny an increased evaluation on an extra-schedular basis for bilateral hearing loss.
SIGNATURES:  [Document signatures on VA Form 21-0961 by following procedures in M21-1, Part III, Subpart v, 1.A.3.b.]

III.iv.6.B.4.g.  Exhibit 2:  38 CFR 4.16(b) Referral Memorandum
This exhibit contains a sample of the memorandum completed for 38 CFR 4.16(b)referrals.
DEPARTMENT OF VETERANS AFFAIRS
[RO Name
RO Address]
[Date]
Director                                                           In Rely Refer To:
Compensation Service (211B)                          [RO #]
Department of Veterans Affairs                        [File Number]
Central Office                                                   [Veteran’s Name]
810 Vermont Ave. NW
Washington, DC 20420
SUBJECT:  Administrative Review for Entitlement to Total Disability Rating Based on Individual Unemployability (TDIU) in Accordance with 38 CFR 4.16(b)
BACKGROUND INFORMATION:  [List service information, such as branch, dates, and place(s) of service.]
STATEMENT OF ISSUE:  [State specific review requested, including any relevant time period and whether the issue is part of a BVA remand.]
Example:  Review for entitlement to TDIU benefits on an extra-schedular basis for the period June 20, 2016, to May 1, 2017.
EVIDENCE:  [List the evidence used for this review]
Example:
  • Rating decision dated April 15, 2016
  • BVA remand dated June 1, 2017
  • VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received January 12, 2016
  • Transcript of hearing, dated May 19, 2017
  • VA examinations dated December 2012, March 2014, and May 2016
  • Social Security Administration (SSA) disability transmittal sheet, dated January 30, 2016 
DISCUSSION:  [Discuss medical evidence in detail for each SC disability related to the request for all pertinent time periods, to include medical evidence found within the file and the BVA remand.]
Example:
Service connection has been established for three conditions.  PTSD was evaluated at 30 percent disabling effective January 2, 2013, and increased to 50 percent disabling effective January 3, 2016; arthritis of the right knee has been evaluated at 10 percent disabling since June 5, 2010, and bilateral hearing loss has been evaluated at zero percent disabling since June 5, 2010.  The combined evaluation for compensation was 10 percent effective June 5, 2010; 40 percent effective January 2, 2013, and 60 percent effective January 3, 2016.  BVA remanded this issue on January 1, 2017, and directed that the case be referred for entitlement to IU benefits on an extra-schedular basis from January 2, 2013, to present date. 
Evidence from SSA shows that the Veteran was found to be entitled to SSA disability benefits in June of 2013.  The primary condition utilized to make that decision was disorders of the spine, and the secondary condition was disorders of the knee. 
Evidence shows that the Veteran attended college for four years and worked as an automobile salesperson following separation from service.  He retired from this position in January of 2012, after 26 years.  Evidence does not show that the service-connected conditions interfered with employment. 
VA psychiatric examinations performed in December of 2012, March of 2014, and May of 2016, demonstrate that the Veteran’s PTSD has deteriorated since 2013.  The Veteran has never been hospitalized for PTSD, and records show no therapy sessions prior to January of 2016.  The Veteran took prescription medication prescribed by his family doctor until December of 2015, when he first started treatment with a psychiatrist.  Evidence shows no hallucinations, delusions, or suicidal or homicidal ideations at any time.  The Veteran’s depression and anxiety (symptoms of PTSD) increased in severity in late 2015.  He started having occasional panic attacks and having difficulty getting along with family members and friends.  He started to isolate himself more often and had difficulty sleeping most nights.  Evidence does not include any medical opinions indicating that the PTSD interfered with prior employment or would prevent employment at any time.
A VA musculoskeletal examination performed in March of 2014, revealed full motion of the right knee with pain.  X-ray evidence revealed arthritis.  No instability of the knee was found.  The Veteran reported pain with extended periods of walking and standing.  He takes over-the-counter pain medication as needed for knee pain.  He does not use a cane or other ambulatory aids.  No surgery has been performed on the right knee.  
A VA examination performed in March of 2014 revealed a mild bilateral hearing loss.  The Veteran was able to hear well during the examination.  His speech discrimination scores were 98% in each ear.  The examiner stated that the hearing loss would not affect employment. 
It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. None of the available evidence supports the Veteran’s contention that any of his service-connected disabilities or a combination of the effects of the disabilities prevents all types of gainful activity. 
RECOMMENDATION:  [Provide a recommendation, to include an effective date, if applicable.]
Example:  Grant entitlement to TDIU on an extra-schedular basis effective June 20, 2017.
SIGNATURES:  [Document signatures on VA Form 21-0961 by following procedures in M21-1, Part III, Subpart v, 1.A.3.b.]

5.  Other Issues to Consider


Change Date

February 28, 2019

III.iv.6.B.5.a.  Other Issues to Consider When Evaluating Evidence

Use the table below to determine other issues to consider when evaluating the evidence submitted with a claim.
Note:  In all substantially complete claims, consider the provisions of 38 CFR 3.155(d)(2) and M21-1, Part III, Subpart iv, 6.B.2 and adjudicate any issues considered within scope of the claim.
If the issue is …
Then consider …
SC
  • SC for expressly claimed conditions, and
  • soliciting claims for unclaimed, chronic disabilities shown by the evidence.
Notes:
  • The mere presence of medical evidence does not constitute a claim because there is no intent to apply for benefits shown.
  • Solicit a claim from the Veteran to determine whether he/she wishes to pursue the unclaimed disabilities (or “issues”) by submitting a claim on a prescribed VA form. Provide the Veteran with information about how to obtain the prescribed form.
References:  For more information on
secondary SC
whether the
  • NSC condition is the direct result of the SC condition, or
  • SC condition has permanently worsened the NSC condition beyond normal progression and, if so, what was the baseline level of disability prior to aggravation and what is the level currently.
Examples:
  • A Veteran has an SC left knee injury. As a result of favoring the left knee, a right knee disability develops that is secondary to the original SC disability.
  • A Veteran develops a heart condition or impotence secondary to SC diabetes.
Reference:  For more information on claims for secondary SC based on the permanent worsening of an NSC condition, see
SC for PTSD
whether the claimed stressor
  • may be established on the basis of the Veteran’s lay testimony alone under 38 CFR 3.304(f), or
  • must be corroborated with additional evidence.
Reference:  For more information on rating PTSD claims, see M21-1, Part III, Subpart iv, 4.O.2.
SC for an undiagnosed illness (Gulf War)
evidence of
  • active military, navy, or air service in the Southwest Asia theater of operations during the Gulf War
  • the manifestation of one or more signs or symptoms of undiagnosed illness
  • objective indications of chronic disability during the relevant period of service, or to a degree of disability of 10 percent or more within the specified presumptive period, and
  • a nexus between the chronic disability and the undiagnosed illness.
Reference:  For more information on SC for disabilities associated with Gulf War service, see M21-1, Part IV, Subpart ii, 2.D.
entitlement to compensation under 38 U.S.C. U.S.C. 1151
whether
  • hospital, medical, or surgical treatment or vocational rehabilitation was rendered by VA, and
  • an increase in disability occurred and, if so, was it due to an
    • instance of fault of VA, or
    • event not reasonably foreseeable, such as an accident.
Note:  Do not solicit a claim for compensation under 38 U.S.C. 1151 by sending an application to a potential beneficiary solely because the evidence of record suggests or raises the possibility that 38 U.S.C. 1151 may be applicable.
Reference:  For more information on compensation under38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 2.G.
evaluation of a disability
  • old and new criteria, if applicable (see M21-1, Part III, Subpart iv, 5.C.8.)
  • DeLuca v. Brown, 8 Vet.App. 202 (1995), if applicable to the musculoskeletal condition, and
  • whether a referral for consideration of an extra- schedular evaluation is warranted.
Note:  38 CFR 3.105(e) is only applicable when there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.
References:  For more information on determining whether
entitlement to pension
whether the disabilities meet the schedular requirements.
Note:  The extra-schedular provisions of 38 CFR 3.321(b)(2)must also be considered if schedular requirements are not met.
Reference:  For more information on schedular requirements, see
entitlement to retroactive pension
entitlement under 38 CFR 3.400(b)(1)(ii), if a qualifying disability exists.
denial of maximum evaluation
assigning the next higher evaluation.
a disability falling between schedular grades
entitlement to the higher evaluation under 38 CFR 4.7, if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, assign the lower evaluation.
References:  For more information on
IU
whether
  • entitlement to IU was explicitly claimed, or
  • entitlement to IU is reasonably raised by evidence of disability supporting IU entitlement.
Reference:  For more information on a total disability evaluation on the basis of IU, see
a death case
accrued benefits if
Reference:  For more information on accrued benefits, seeM21-1, Part VIII.
a supplemental claim for Veterans Pension that involves
  • evidence of new disabilities, or
  • a change in the evaluation of any previously- evaluated disabilities
Veterans Pension with a formal, coded rating decision.
a claim for a temporary total evaluation for hospitalization under 38 CFR 4.29or convalescence under 38 CFR 4.30
either claim under 38 CFR 4.29 or 4.30 as part of a claim for increased evaluation for the underlying disability(ies).
P&T disability status
guidance discussed in M21-1, Part III, Subpart ii, 2.B.1.j.
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