Overview
In This Section |
This section contains the following topics:
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1. Types of Issues and Claims
Introduction |
This topic contains information about the various types of issues and claims, including
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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
Note: Within-scope issues encompass
References: For more information on
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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.
Example: Epilepsy is listed as a claimed disability on VA Form 21-526EZ,Application for Disability Compensation and Related Compensation Benefits.
References: For more information on
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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
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
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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
References: For more information on
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III.iv.6.B.1.e. Definition and Example: Ancillary Benefits |
Ancillary benefits are secondary benefits that are considered when evaluating claims for
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.
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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
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
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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
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
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
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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.
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2. Considering Issues Within Scope of a Claim
Introduction |
This topic contains information about considering issues within scope of a claim, including
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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.
Reference: For information on raising the issue of competency while evaluating other evidence, see M21-1, Part III, Subpart iv, 8.A.2.a.
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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:
Notes:
References: For more information on
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3. Qualifying Disabilities Under 38 CFR 3.383
Introduction |
This topic contains information about qualifying disabilities under 38 CFR 3.383, including
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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
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4. Extra-Schedular Consideration
Introduction |
This topic contains information about extra-schedular consideration, including
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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
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
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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)
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
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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).
References: For more information on
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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.
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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.
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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.
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Historical_M21-1III_iv_6_SecB_4-1-16.doc | May 15, 2019 | 233 KB |
Historical_M21-1III_iv_6_SecB_5-19-17.doc | May 15, 2019 | 270 KB |
Historical_M21-1III_iv_6_SecB_1-11-16.doc | May 15, 2019 | 221 KB |
Historical_M21-1III_iv_6_secB_03-24-2015.docx | May 15, 2019 | 70 KB |
2-28-19_Key-Changes_M21-1III_iv_6_SecB.docx | May 15, 2019 | 78 KB |
7-25-17_Key-Changes_M21-1III_iv_6_SecB.docx | May 15, 2019 | 98 KB |
5-19-17_Key-Changes_M21-1III_iv_6_SecB.docx | May 15, 2019 | 83 KB |
7-12-18_Key-Changes_M21-1III_iv_6_SecB.docx | May 15, 2019 | 73 KB |
10-11-17_Key-Changes_M21-1III_iv_6_SecB.docx | May 15, 2019 | 94 KB |
11-15-16_Key-Changes_M21-1III_iv_6_SecB.docx | May 15, 2019 | 87 KB |
4-1-16_Key-Changes_M21-1III_iv_6_SecB.docx | May 15, 2019 | 73 KB |
1-11-16_Key-Changes_M21-1_III_iv_6_SecB.docx | May 15, 2019 | 69 KB |
Change-June-30-2015-Transmittal-Sheet-M21III_iv_6_SecB_TS.docx | May 15, 2019 | 42 KB |
Change-March-24-2015-Transmittal-Sheet-M21-1MRIII_iv_6_secB_TS.docx | May 15, 2019 | 40 KB |
in Chapter 6 The Rating Decision, Part III General Claims Process, Subpart iv General Rating Process
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