Overview
In This Section |
This section contains the following topics:
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1. General Information on Entitlement to Benefits Under 38 U.S.C. 1151
Introduction |
This topic contains general information on entitlement to benefits under 38 U.S.C. 1151, including
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Change Date |
May 17, 2018
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IV.ii.2.G.1.a. Basic Criteria for Entitlement to Compensation Under 38 U.S.C. 1151 |
38 U.S.C. 1151 provides for the payment of compensation for additional disability or death that is proximately caused by
Award compensation for qualifying additional disability or death under 38 U.S.C. 1151 in the same manner as if the disability or death is service-connected (SC).
Reference: For more information on entitlement to compensation or Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. 1151, see
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IV.ii.2.G.1.b. Analysis of Claims Under 38 U.S.C. 1151 |
Claims for compensation under 38 U.S.C. 1151 require a five-part analysis. The table below describes the facts that must be established in order to grant compensation under 38 U.S.C. 1151.
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IV.ii.2.G.1.c. Determining Whether Additional Disability Exists Under 38 U.S.C. 1151 |
To determine whether a Veteran has incurred additional disability under 38 U.S.C. 1151, compare the Veteran’s condition immediately before the beginning of the VA medical care, training, or CWT program on which the claim is based to his/her condition afterwards.
Each body part should be compared separately.
Note: Per VAOPGCPREC 1-1999, VA may pay compensation under 38 U.S.C. 1151 for psychiatric disability incurred or aggravated as a result of VA hospitalization, medical or surgical treatment, examination, or vocational rehabilitation.
Reference: For more information on determining whether a Veteran has incurred additional disability, see 38 CFR 3.361(b).
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IV.ii.2.G.1.d. Definition: Informed Consent |
Informed consent generally means agreement by a patient, or in some cases a surrogate, to treatment or care after having been provided with information. The informed consent process typically has the following main elements
Informed consent can be express or implied.
Notes:
References: For more information on
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IV.ii.2.G.1.e. Definition: Express Consent |
Express consent is a type of informed consent that has been clearly stated either orally or in writing.
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IV.ii.2.G.1.f. Definition: Implied Consent |
Implied consent is a type of informed consent that may be inferred from the circumstances in the case. 38 CFR 17.32 permits practitioners to provide necessary medical care in emergency situations without the patient’s/surrogate’s express consent when
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Introduction |
This topic contains information on the types of services covered under 38 U.S.C. 1151, including
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Change Date |
May 17, 2018
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IV.ii.2.G.2.a. Type of VA Care Considered Under 38 USC 1151 |
For the purposes of 38 U.S.C. 1151, the types of VA care that can cause the disability or death include
Refer to the table below for more information on these types of VA care.
Reference: For more information on determining whether the circumstances and/or location of hospital, medical or surgical treatment, or examination is covered under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 2.G.2.c.
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PL 104-204, Section 422, changed the term hospitalization to hospital careeffective October 1, 1997.
Reference: For more information on the definition of and distinction between hospitalization and hospital care, see
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IV.ii.2.G.2.c. Circumstances for VA Care Covered Under 38 U.S.C. 1151 |
VA hospital care, medical or surgical treatment, or examination must be furnished to the Veteran
Per 38 CFR 3.361, a VA employee is defined as an individual
Per 38 CFR 3.361, a VA facility is a facility over which the Secretary of VA has direct jurisdiction. The following activities are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. 1151
Important: For the purposes of compensation under 38 U.S.C. 1151, the disability or death must result from the medical treatment or examination itself and not from independent causes occurring coincidentally with the treatment or examination.
Exception: In certain circumstances, compensation may be paid under 38 U.S.C. 1151 for additional disability incurred as a result of a medical procedure conducted by a non-VA employee in a non-VA facility as discussed in M21-1, Part IV, Subpart ii, 2.G.3.f–h.
Reference: For more information on determining whether disability or death results from independent causes occurring coincident with the treatment or examination, see VAOPGCPREC 1-1999.
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IV.ii.2.G.2.d. Vocational Rehabilitation Services Covered Under 38 U.S.C. 1151 |
Compensation will be paid for disability or death that is proximately caused by training and rehabilitation services provided as part of an approved rehabilitation program under 38 U.S.C. Chapter 31.
Note: This includes training and rehabilitation services provided by VA under 38 U.S.C. 3115.
Reference: For more information on establishing causation for disability or death incurred due to training and rehabilitation services, see
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IV.ii.2.G.2.e. CWT Services Covered Under 38 U.S.C. 1151 |
Compensation will be paid for disability or death that is proximately caused by participation in a CWT program under 38 U.S.C. 1718.
Note: PL106-419 authorized the grant of compensation for disability or death proximately caused by participation in CWT effective November 1, 2000.
Reference: For more information on establishing causation for disability or death incurred due to participation in a CWT program, see
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Introduction |
This topic contains general information on establishing causation under 38 U.S.C. 1151, including
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Change Date |
May 17, 2018
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IV.ii.2.G.3.a. Definition: Proximate Cause |
Proximate cause
Important: When considering whether proximate cause between an event and a subsequent disability or death exists, consider the following.
Note: A showing of proximate cause is required for all benefits granted under 38 U.S.C. 1151.
References: For more information on
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IV.ii.2.G.3.b. Establishing Proximate Cause Due VA Care for 1151 Claims |
For a grant of compensation under 38 U.S.C. 1151, the evidence must show that the proximate cause of the disability or death resulting from VA hospital care, medical or surgical treatment, or examination was the result of
Note: The requirement for a showing of fault or that an event was not reasonably foreseeable applies only to claims received on or after October 1, 1997.
References: For more information on
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IV.ii.2.G.3.c. Establishing Fault Associated With Proximate Cause in 1151 Claims |
To establish that fault (including carelessness, negligence, lack of proper skill or error in judgment) on the part of VA in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a Veteran’s disability or death, the evidence must show that VA
Important: A finding of fault is not required in claims for compensation under 38 U.S.C. 1151(a)(1)(B) based on event that was not reasonably foreseeable.
Reference: For more information on informed consent, see M21-1, Part IV, Subpart ii, 2.G.1.d.
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In the case of Gardner v. Derwinski, 1 Vet.App. 584 (1991), 513 U.S. 115(1994), the US Supreme Court held that 38 U.S.C. 1151 imposed only a causation requirement and did not authorize VA to establish an additional requirement for a showing of fault. PL 104-204, Section 422, amended the causation standard for claims under 38 U.S.C. 1151 to include a fault element.
Reference: For more information on the revision of causation to include the addition of the fault requirement, see
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IV.ii.2.G.3.e. Determining When an Event Is Not Reasonably Foreseeable in 1151 Claims |
An event is not reasonably foreseeable if it is not one of the risks that is or would be disclosed as a part of informed consent procedures.
Important: There is no requirement for a finding of fault in claims for compensation under 38 U.S.C. 1151(a)(1)(B) based on event that was not reasonably foreseeable.
References: For more information on
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IV.ii.2.G.3.f. Establishing Fault Associated With Non-VA Care |
A claim for compensation under 38 U.S.C. 1151(a)(1)(A) may be premised upon a finding of fault on the part of VA in the referral for care.
When a claim for compensation under 38 U.S.C. 1151(a)(1)(A) is predicated upon a referral from VA to a non-VA provider or medical facility or a VA recommendation regarding a procedure, the evidence must show that
When the claim is based upon a VA referral or recommendation, the following must be demonstrated to establish entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A):
Reference: For more information on claims for compensation under 38 U.S.C. 1151 based on non-VA care, see Ollis v. Shulkin, 857 F. 3d, 1338 (2017).
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IV.ii.2.G.3.g. Examples of 1151 Claims Associated With Fault in Referral for Non-VA Care |
Example 1: A Veteran is treated for chronic pain due to degenerative disc disease of the lumbar spine by VA. The Veteran’s VA physician refers the Veteran to a private medical facility that specializes in spinal diseases and injuries for consideration of continuing conservative treatment or surgical intervention. A private neurosurgeon performs a laminectomy and afterward, the Veteran has reduced mobility of lumbar spine with worsening radiculopathy of the lower extremities.
Outcome 1: In this case, entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A) on the theory of referral would be precluded as VA was not careless, etc. in referring to a private medical facility, i.e., VA carelessness, negligence, lack of skill, etc. did not proximately case the Veteran’s disability. The facility specialized in treatment of spinal conditions and the referral was for consideration of treatment options, to include surgery. Although additional disability resulted from the procedure, the referral to the private facility was medically appropriate and not shown to be negligent.
Example 2: Veteran is treated for irritable bowel syndrome by VA. He presents to the VA medical center (VAMC) with complaints of right quadrant abdominal pain and is referred to a private local general practitioner by his VA physician. The general physician examines the Veteran and sends him home with pain medications. The pain becomes more severe over several days and the Veteran seeks medical attention at the nearest hospital’s emergency department. Diagnostic testing shows a ruptured appendix that has perforated resulting in peritonitis and bowel obstruction. A lengthy hospital stay is required, which successfully treats the peritonitis; however, resection of significant amount of large intestine, as well as small intestine, was required. After discharge from the hospital, the Veteran’s symptoms consisted of frequent diarrhea, recurring pain, and constant fatigue.
Outcome 2: In this case, entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A) on the theory of referral may be awarded as the evidentiary record reveals that:
Example 3: Veteran is treated by VA for diabetes mellitus that has progressed to development of a gangrenous ulcer affecting much of his right foot. The Veteran’s VA physician examines the Veteran and finds a gangrenous infection and believes that amputation is required to preclude further spreading of the infection in the extremity. Such procedures are not conducted by the VAMC and the VA physician refers the Veteran to a local private surgeon for evaluation. The surgeon evaluates the Veteran and determines that amputation of part of the right foot is required due to the gangrenous infection. The Veteran agrees to undergo the procedure. The surgery is performed and the surgeon amputates the left foot instead of the gangrenous right foot.
Outcome 3: In this case, entitlement to disability compensation under 38 U.S.C. 1151(a)(1)(A) on the theory of referral would not be warranted. Although the private surgeon was clearly negligent in amputating the wrong extremity, no negligence of similar instance of fault is demonstrated by VA’s referral to the surgeon. The referral to the private surgeon was medically appropriate in view of the Veteran’s medical condition, prognosis, and clinically-determined requirement for amputation to treat a diabetic infection of a lower extremity, which was not available at the VA medical facility.
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IV.ii.2.G.3.h. Establishing Proximate Cause for Non-VA Care and Unforeseeable Events |
A claim for compensation under 38 U.S.C. 1151(a)(1)(B) may be premised upon a theory of referral from VA to a non-VA medical provider or facility involving an unforeseeable event.
When a claim for compensation is predicated upon a theory of referral from VA to a non-VA medical provider or facility involving an unforeseeable event, the evidence must show that
Important: When a claim for benefits under 38 U.S.C. 1151 associated with care in a non-VA facility by a non-VA provider is premised upon a finding that an event was not reasonably foreseeable, the two components of the chain of causation do not require an element of fault by VA. The two components required for the chain of causation in these non-VA care scenarios are proximate cause between both
Reference: For more information on claims for compensation under 38 U.S.C. 1151 based on non-VA care, see Ollis v. Shulkin, 857 F. 3d, 1338 (2017).
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IV.ii.2.G.3.i. Establishing Proximate Cause Associated With CWT or Vocational Rehabilitation Services in 1151 Claims |
To establish proximate cause of additional disability or death associated with the provision of training and rehabilitation services or a CWT program, the evidence must show
Important:
References: For more information on
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4. Considering Specific Instances of Causation and Fault Under 38 U.S.C. 1151
Introduction |
This topic contains information on considering specific instances of causation and fault, including 38 U.S.C. 1151 disability resulting from
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Change Date |
May 17, 2018
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IV.ii.2.G.4.a. 1151 Disability Resulting From an Act of Omission |
Entitlement to compensation under 38 U.S.C. 1151 may be based on acts of omission as well as acts of commission in providing hospital care, medical or surgical treatment, or examination.
References: For more information on
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IV.ii.2.G.4.b. 1151 Disability Resulting From Premature Discharge |
Compensation may be payable under 38 U.S.C. 1151 when a physician determines that a patient should be discharged from a hospital after a period of treatment, but the patient claims that the discharge
Consider whether the timing of the discharge aggravated the disability beyond the level of natural progression.
Notes:
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IV.ii.2.G.4.c. 1151 Disability Resulting From Medication |
Compensation is payable under 38 U.S.C. 1151 for any disability caused by medication that was prescribed by VA and taken or administered as prescribed, if the disability was directly due to
Example: Compensation is payable under 38 U.S.C. 1151 if
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IV.ii.2.G.4.d. 1151 Disability Resulting From Error in Judgment |
Error in judgment, as used in 38 U.S.C. 1151, refers to errors involving negligence and does not encompass reasonable decisions regarding diagnosis and treatment merely because they later prove to have been incorrect.
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IV.ii.2.G.4.e. 1151 Disability Resulting From Failure to Follow Appropriate Standard of Care |
Failure to follow the appropriate standard of care may equate to carelessness, negligence, lack of skill, or similar incidence of fault for the purpose of establishing entitlement to benefits under 38 U.S.C. 1151.
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IV.ii.2.G.4.f. 1151 Disability Resulting From Failure to Diagnose or Treat |
Compensation under 38 U.S.C. 1151 is not payable when a disability or death is the result of continuation or natural progression of a disease or injury.
Benefits under 38 U.S.C. 1151 are authorized where VA improperly fails to diagnose or provide treatment for a preexisting disease if it is determined that the Veteran’s disability is greater than it would have been with proper diagnosis and treatment. A grant of benefits under this standard requires the following findings of fact.
Note: Compensation for the continuation or natural progress of preexisting disease or injury due to VA’s failure to diagnose or treat a condition does not apply in the context of vocational rehabilitation training or CWT because vocational rehabilitation does not involve medical services.
Reference: For more information on determining whether an injury is due to continuation or natural progression of a disease or injury for 38 U.S.C. 1151purposes, see
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IV.ii.2.G.4.g. 1151 Disability Resulting From Veteran’s Failure to Follow Medical Instructions |
In some cases, the evidence will show that, following VA treatment or surgery, the Veteran
In such cases, this failure may constitute an intercurrent cause, thereby precludingpayment of benefits under 38 U.S.C. 1151.
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5. Procedures For Considering a Claim for Benefits Under 38 U.S.C. 1151
Introduction |
This topic contains information on procedural elements for processing a claim for benefits under 38 U.S.C.1151, including
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Change Date |
February 19, 2019
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IV.ii.2.G.5.a. Claims for Benefits under 38 U.S.C. 1151 |
There is no application form specific to claims for 38 U.S.C. 1151 compensation. However, subject to the general policies and procedures applicable to claims, a request for benefits under 38 U.S.C. 1151, whether an initial claim or decision review request, must be submitted on the standardized claim form approved for acceptance of the equivalent SC benefit or decision review election.
Important: Do not solicit a claim for 38 U.S.C. 1151 compensation where review of the evidence of record suggests or raises the possibility that the provisions of the statute may apply.
References: For more information on
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IV.ii.2.G.5.b. Entitlement to 1151 Compensation vs. Service Connection |
Although compensation or DIC is payable under 38 U.S.C. 1151 as if the additional disability or death were SC, the additional disability or death is not actually SC.
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IV.ii.2.G.5.c. Disability Secondary to an 1151 Disorder |
Compensation is payable for disability that is secondary to a disability that has been granted under 38 U.S.C. 1151.
Reference: For more information on payment of compensation for disabilities secondary to 1151 disabilities, see VAOPGCPREC 8-1997.
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IV.ii.2.G.5.d. 1151 Disability Based on Aggravation |
Compensation for additional disability under 38 U.S.C. 1151 exists where there is a non-service-connected, pre-existing condition that has been aggravated by
Use the table below to determine the appropriate evaluation to assign based on aggravation of a disability under 38 U.S.C. 1151.
Reference: For more information on aggravation of disabilities under 38 U.S.C. 1151, see VAOPGCPREC 4-2001.
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IV.ii.2.G.5.e. Paired Organs or Extremities and 38 U.S.C. 1151 |
Entitlement to compensation under 38 U.S.C. 1151 confers entitlement to compensation for paired organs or extremities under 38 U.S.C. 1160 if the criteria for entitlement are otherwise met.
Under 38 U.S.C. 1160, the evaluations of paired organs or extremities are combined as if both were SC, even if one of the paired organs or extremities is compensable “as if” SC under 38 U.S.C. 1151.
Reference: For more information on special considerations for paired organs and extremities, see
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IV.ii.2.G.5.f. Obtaining Records in 1151 Claims |
Ensure that the following evidence has been obtained prior to deciding a claim for benefits under 38 U.S.C. 1151:
Reference: For additional information on development required, including requests for VA records, for claims under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 1.A.2.
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IV.ii.2.G.5.g. Requesting Medical Opinions in 1151 Claims |
To clarify whether the care, treatment, or examination at issue resulted in additional disability or death, it may be necessary to obtain
The threshold for requesting an examination and/or opinion in a claim under 38 U.S.C. 1151 for a disability resulting from VA care is the same threshold as applies to regular claims for SC compensation benefits as described in 38 CFR 3.159(c)(4). Request an examination or medical opinion if the evidence of record does not contain sufficient competent medical evidence to decide the claim but
Important: As discussed in McLendon v. Nicholson, 20 Vet.App. 79 (2006), the threshold for providing a VA examination must be low. Do not require that the evidence of record prove a nexus between the asserted injury or event and the current disability or competent medical evidence of fault before providing the Veteran with a VA examination or opinion.
References: For more information on
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IV.ii.2.G.5.h. Obtaining an Advisory Opinion for 1151 Claims |
Submit unusually difficult cases involving claims for compensation under 38 U.S.C. 1151 to the Director of Compensation Service (211B) for an advisory opinion.
Reference: For more information on Compensation Service guidance and advisory opinions, see M21-1, Part III, Subpart vi, 1.A.
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6. Preparing a Rating Decision Under 38 U.S.C. 1151
Introduction |
This topic contains information on preparing a rating decision involving a claim for benefits under 38 U.S.C.1151, including
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Change Date |
February 19, 2019
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IV.ii.2.G.6.a. Considering Direct and Presumptive SC in 1151 Claims |
Do not put direct or presumptive service connection (SC) at issue if the only issue raised is compensation under 38 U.S.C. 1151 and the disability is clearly one that arose many years after service or coincident with treatment.
Note: Undertake development and consider awarding SC on a presumptive basis if the disability in question arose within the applicable presumptive period following release from active duty.
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IV.ii.2.G.6.b. Preparing the Rating Decision for 1151 Grants |
Grants of compensation under 38 U.S.C. 1151 may be completed in short-form rating narrative format. System-generated text is legally adequate for most grants of benefits under 38 U.S.C. 1151, provided it sufficiently satisfies the narrative decision element requirements communicated in M21-1, Part III, Subpart iv, 6.C.5.a.
Supplement the rating decision narrative language with a brief discussion of the event that resulted in additional injury or death.
Important: Although the regulatory standard for a finding of fault listscarelessness, negligence, lack of proper skill [and] error in judgment as falling under the umbrella of fault-related fact patterns, avoid using words like negligenceor malpractice, particularly if those words do not appear verbatim in the evidence of record, as use of those terms may result in unintended impacts on associated tort claims.
Reference: For more information on rating decisions completed in short-form rating narrative format, see M21-1, Part III, Subpart iv, 6.C.6.
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IV.ii.2.G.6.c. Preparing the Rating Decision for 1151 Denials |
Denials of compensation under 38 U.S.C. 1151 must be completed in long-form rating narrative format. Supplement system-generated text with text that adequately
Specifically, in the rating decision narrative, include a more thorough discussion of the basis for the denial and facts of the case, with particular attention to all the following which apply:
Important: Avoid statements that are uncorroborated or speculative. Cite the evidence and rationale upon which the conclusion is based. References: For more information on
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IV.ii.2.G.6.d. Assigning an Effective Date for 1151 Compensation |
Under 38 U.S.C. 1151, the effective date of entitlement to
Reference: For more information on determining effective dates under 38 U.S.C. 1151, see 38 CFR 3.400(i).
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IV.ii.2.G.6.e. Combining the Disability Ratings of Qualifying 1151 Disabilities and SC Disabilities |
Combine the disability rating(s) assigned to disabilities for which compensation is payable under 38 U.S.C. 1151 with the disability ratings assigned to SC disabilities, as if the former were SC.
If two or more disabilities (at least one being a qualifying disability under 38 U.S.C. 1151) are rated zero percent disabling but interfere with the Veteran’s employability, the assignment of a 10-percent disability rating under 38 CFR 3.324is acceptable.
Note: 38 U.S.C. 1151 disabilities may serve as the basis of an individual unemployability award.
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IV.ii.2.G.6.f. Possible Eligibility for Ancillary Benefits Based on Qualifying 1151 Disability |
A Veteran with a qualifying disability under 38 U.S.C. 1151 may also be eligible for
Reference: For more information on ancillary benefits, see
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IV.ii.2.G.6.g. Ancillary Benefits Not Available by Reason of a Qualifying 1151 Disability |
The following ancillary benefits are not available by reason of a qualifying disability under 38 U.S.C. 1151:
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Historical_M21-1IV_ii_2_SecG_6-15-17.docx | May 21, 2019 | 112 KB |
Historical_M21-1IV_ii_2_SecG_5-17-18.docx | May 21, 2019 | 93 KB |
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6-15-17_Key-Changes_M21-1IV_ii_2_SecG.docx | May 21, 2019 | 90 KB |
12-17-15_Key-Changes_M21-1IV_ii_2_SecG.docx | May 21, 2019 | 90 KB |
2-19-19_Key-Changes_M21-1IV_ii_2_SecG.docx | May 21, 2019 | 76 KB |
5-17-18_Key-Changes_M21-1IV_ii_2_SecG.docx | May 21, 2019 | 111 KB |
Change-May-14-2015-Transmittal-Sheet-M21-1IV_ii_2_SecG_TS.docx | May 21, 2019 | 48 KB |
Transmittal-Sheet-pt04_sp02_TS_10-05-10.docx | May 21, 2019 | 41 KB |
in Chapter 2 Rating, Part IV Compensation, DIC, and Death Compensation Benefits, Subpart ii Compensation
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