It is important to understand the definition of both words and legal expressions that will be used throughout by the Veterans Affairs Department.

    Please keep in mind that this is a work-in-progress.     Thank you.

Index

Physical Examinations     Types of Examination     Claims     Appellate Rights

United States Code     Code of Federal Regulations   CFR     Directives

Service Connection--Direct or Presumptive     Determination of Service Incurrence

Disabilities related to Combat     Definition of Injury

Aggravation of Preservice Disability     Claims for Secondary Service Connection by Aggravation

Individual Unemployability     Evidence Requirements

Rating Practices and Procedures     Requirements     Unemployability

Marginal Employment     Marginal Employment for Farmers

Presumptive Disease Associated with Exposure to Herbicide Agents

[Your Advocate Comments]

Legal Precedence   Definition     Plausible   or   "Well-Grounded"   Claims

Decision Citings


Twelve Step Approach to PTSD

PHYSICAL EXAMINATIONS

1.01 GENERAL

a. Acceptable Medical Evidence. A statement from any physician that includes clinical manifestations and substantiation of diagnosis by findings of diagnostic techniques generally accepted by medical authorities, such as pathological studies, X-rays, and laboratory tests as appropriate, may be accepted for rating any claim without further examination, provided it is otherwise adequate for rating purposes. For more information on examinations in general,     see 38 CFR § 3.326.

b. Requests for Examination. Generally, responsibility for requesting physical examinations is a function of the rating activity or the pre-determination team. Unless new and material evidence is of record, do not request an examination (38 CFR § 3.159(c)(4)(iii)). However, if new and material evidence is of record, but the evidence is insufficient for rating all the claimed and noted disabilities, an examination should be requested. Under 38 CFR § 3.159(c)(4) a medical examination is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but

* Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability

* Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in 38 CFR § 3.309, § 3.313, § 3.316 and 3.317 manifesting itself during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and

* Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.

NOTE: The VSCM may also authorize an examination for any case in which he or she believes it is warranted.

Source:   Part 6, Chap 1 Physical Examinations
 
1.02 TYPES OF EXAMINATION

a. General Medical. A general medical examination containing a full report of complaints and functional impairments is the preferred type of examination in original compensation claims. (However, it is not necessary to request a general medical examination if an original claim for compensation is being rated many years after service separation.) It may also be appropriate to request a general medical examination to obtain evidence in nonservice-connected disability pension claims or in compensation claims for individual unemployability. A well-performed general medical examination is usually of greater value than a number of uncorrelated specialist examinations. Cite body systems to be examined, as well as conditions or particular diagnoses that require attention.

  1.08 FAILURE TO REPORT FOR EXAMINATION

The claims folder will be referred to the rating activity for consideration of evidence of record under 38 CFR § 3.326(c) and (d) if a claimant fails to report for a VA examination and no other requests for evidence are pending. The rating activity must then make a rating based on the evidence of record and dispose of the issue. (This includes unsuccessful requests for SMRs when the claimant has been provided an opportunity to furnish such records.) In addition to an itemization of all pieces of evidence received, the "Evidence" section of the rating should describe all unsuccessful attempts to acquire evidence, which includes failure to report for examination. See chapter 3.

a. "Adjudication division" means: adjudication division in a regional office or center.

b. "Adjudication officer" means: adjudication officer or supervisor delegated to act in that capacity in a regional office or center.

c. "District counsel" means: district counsel or designee in a regional office or center.

d. "Authorizer" means: the approving signatory on payment actions in the adjudication division of a regional office or center.

e. "Service department" means: Army, Navy (including Marine Corps), Air Force, Transportation (Coast Guard), Health and Human Services (Public Health Service), and Commerce (Coast and Geodetic Survey and its successor agencies, ESSA - Environmental Science Services Administration and NOAA - National Oceanic and Atmospheric Administration).
 

  2.03 CLAIMS

a. Source. Claims are our "customers'" requests for the benefits and services we provide. The thousands of claims we receive each year come from:

(1)   The veteran or survivor directly.

(2)   A veterans benefits counselor on behalf of a claimant.

(3)   A VA medical center, an outreach center or clinic, etc.

(4)   A veterans' service organization, such as the American Legion, the Disabled American Veterans, the Veterans of Foreign Wars, etc.

(5)   A state or county veterans' agency.

(6)   Attorney or representative of the claimant.

b.   Receipt/Control.     Incoming mail is usually received in the mailroom where it is opened, stamped to show the date received and routed to the operating division.

c.   Processing

(1)   The rating board decides eligibility for compensation, special monthly compensation (SMC), pension, special monthly pension (SMP) and various other issues.

(2)   Authorization makes determinations concerning service, income, certain effective dates, necessary evidence, and award procedures. VCEs insure the claimants are notified of the decision, including the reasons for the decision. Each claimant is given information concerning appellate and procedural rights.
 
d.   Appellate Rights.     Decisions may be appealed by claimants. The procedures for handling appeals are contained in M21-1, Part IV, chapter 8. Decisions of the Board of Veterans' Appeals may be appealed to the Court of Veterans Appeals. See paragraph 1.03b.

Source:   Adjudication Division Manual
 

  3.01   United States Code

a.   The United States Code (U.S.C.) contains the statutes of the United States of America. They are arranged systematically for easy reference. Title 38 United States Code is the section that applies to veterans' benefits. Other sections of the United States Code have a bearing on VBA as well, such as Title 5 U.S.C. which concerns government organization and employees and Title 10 U.S.C. which pertains to the military.

b.   The United States Code gives the Secretary of Veterans Affairs the authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws. (Section 501, Title 38 U.S.C.)

38 U.S.C. § 101 - DEFINITIONS     (A MUST READ!)
 
3.02   Code of Federal Regulations

a.   The Secretary's rules and regulations are contained in Title 38 of the Code of Federal Regulations (38 CFR.). The Compensation and Pension Service writes the regulations that pertain to the adjudication of claims for compensation, pension and other benefits that are processed by adjudication personnel. All regulations (proposed and final) are published in the Federal Register. A period of time is given to receive comments from the public and interested organizations. One of the functions of the General Counsel is to give a written interpretation of the law whenever necessary.

b.   The Code of Federal Regulations is organized into sections which pertain to the different elements and benefits. Those you will deal with most include:

(1)   Part 3 - Adjudication     (2)   Part 4 - Schedule for Rating Disabilities
 
3.03 DIRECTIVES

Directives provide instructions to VA personnel. There are different forms of directives but the ones most commonly encountered are:

a.   Circulars.     Circulars are issued to get instructions to the field stations expeditiously. They are used when required for special projects, to implement a program with an ending date, to implement instructions subject to frequent change, or to test a procedure.

b.   Manuals

(1)   Manuals are designed to provide procedures for benefit payments and, in general, for all the work everyone in VA does. They provide uniform procedures for all offices in the application of laws, regulations and development activities. Details are included to help achieve uniformity and maximum effectiveness.

  (2)   M21-1 is divided into numbered parts, which are then divided into chapters. The chapters are subdivided when necessary into subchapters. Paragraphs are given a decimal number. The digits to the left of the decimal indicate the chapter number and the digits to the right of the decimal indicate main paragraphs. The pages are numbered from one within each chapter and each subchapter. The reference M21-1, I, 1.05 refers to M21-1, Part I, Chapter 1, Paragraph 5.

c.   Responsibility.     Regional Offices are responsible for insuring that the current ARMS disc is available on the LAN. All employees must be provided an access to it and/or WARMS. It is no longer necessary to maintain paper versions of regulations, manuals, circulars, etc., if an employee has direct, ready access to ARMS or WARMS.

Source:   Laws and Regulations governing the V.A.
 
7.01 SERVICE CONNECTION--DIRECT OR PRESUMPTIVE

a.   General.     If service connection is claimed for a disease diagnosed after service, consider first the possibility of direct service connection (38 CFR § 3.303(d)). Do not invoke presumption of service connection for chronic or tropical diseases until the possibility of direct service connection has been eliminated. Do not routinely disallow claims for disabilities indicated as beginning after service merely because the veteran is not entitled to presumptive service connection, or because the disability is not subject to presumption (38 CFR § 3.303(d)).

b.   Peacetime Service Before January 1, 1947. The rules pertaining to direct and presumptive service connection are as follows:

(1)   Presumption of Soundness.     A veteran must have had active, continuous service of 6 months or more to be entitled to presumption of soundness upon entrance onto active duty (38 CFR § 3.305(b)).

(2)   Presumptive Service Connection for Chronic Diseases. There is no provision for presumptive service connection for chronic diseases (38 CFR § 3.308(a)).   (Err:   peacetime service before January 1, 1947)

(3)   Presumptive Service Connection for Tropical Diseases.     A veteran must have had active, continuous service of 6 months or more to meet the requirements for presumptive service connection for diseases listed in 38 CFR § 3.309(b). (See 38 CFR § 3.308(b). Peacetime)

c.   Wartime and Peacetime Service After December 31, 1946. The rules pertaining to direct and presumptive service connection are as follows:

(1)   Presumption of Soundness.     There is no minimum active duty requirement to be met before the presumption of soundness upon enlistment can be invoked (38 CFR § 3.304(b)).

(2)   Presumption of Service Connection.     A veteran who had active, continuous service of 90 days or more meets the requirements for presumptive service connection for either chronic diseases (38 CFR § 3.309(a)) or tropical diseases (38 CFR § 3.309(b)). (See 38 CFR § 3.307.)

d.   Active Duty For Training.     Active duty for training is not considered active duty unless service connection is granted for a condition incurred in or aggravated during the period of active duty for training, or for a condition resulting from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident while proceeding directly to or returning directly from a period of active duty for training. The presumption of soundness is not applicable to an individual who has served only on active duty for training and has not established any service-connected disability. If a veteran is service connected for a disability which occurred during active duty for training, the presumption of soundness would then apply for other disabilities alleged to have occurred during that period of active duty for training. (Paulson v. Brown, 7 Vet. App. 466 (1995).) An individual whose service consisted entirely of inactive duty training may not be presumptively service connected for a disability unless he or she was otherwise (1) disabled from an injury directly incurred in or aggravated during the period of inactive duty training, or (2) disabled from an acute myocardial infarction, a cardiac arrest or a cerebrovascular accident that occurred during such training or that occurred while proceeding directly to or returning directly from such training. (See 38 CFR § 3.6.)

NOTE:     The presumption of service connection for radiogenic diseases applies to individuals who participated in radiation-risk activities during a period of active duty for training or inactive duty for training. (See 38 CFR § 3.309(d)(4)(i).)

e.   Direct Service Connection.     A veteran who lacks the requisite 90 days or 6 months of service may be granted service connection only on a direct basis. Also, grant only direct service connection for any disability not included in 38 CFR § 3.309.

f.   Definition of Continuous Active Service.     "Continuous active service" excludes lengthy periods of extended absence from duty such as unauthorized absence or other extended nonpay status. The following facts and findings are set forth in General Counsel Opinion 4-80:     The servicemember was absent from duty for 1,344 days before returning to military control. The veteran received an honorable discharge 9 days later and developed a chronic disease within 1 year of discharge. Since the veteran was without active, continuous service for all but 9 days of the 3-3/4 years preceding separation, the continuous service requirement of 38 CFR § 3.307 is not met.

g.   Service Connection for Congenital/Developmental Conditions.     Congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration. A disease, even one which is hereditary in origin, e.g., retinitis pigmentosa, polycystic kidney disease, sickle cell diseases and Huntington's disease (chorea), is usually capable of improvement or deterioration.

(1)   Service connection may be granted, if warranted, for diseases of congenital, developmental or familial (hereditary) origin which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service. Service connection may also be established pursuant to 38 CFR 3.309(a) if a hereditary or familial disease first became manifest to a compensable degree within the presumptive period following discharge from service provided the rebuttable presumption provisions of 38 CFR § 3.307 are satisfied (O.G.C. Precedent Opinion 1-90, March 16, 1990).

(2)   Diseases of hereditary origin can be considered to be incurred in service if their pathological signs or symptoms were manifested after entry on duty. Even if the individual is almost certain to eventually develop a condition, a genetic or other familial predisposition does not constitute having the disease. Only when actual symptomatology or signs of pathology are manifest can he/she be said to have developed the disease. At what point the individual starts to manifest signs or symptoms is a factual issue determined by the medical evidence of record in each case.

(3)   A hereditary disease which manifests some symptoms before entry on duty, may be found to have been aggravated during service if it progresses during service at a rate greater than normally expected according to accepted medical authority. Again, this is a factual, medical determination which must be based upon the evidence of record and sound medical judgment.

h.   Metastasis of Nonradiogenic Cancer.     Service connection may not be established under the provisions of 38 CFR § 3.311 or 38 CFR § 3.309(d) for a listed cancer if it developed as a result of metastasis of a nonradiogenic cancer not listed in either section. See 38 CFR § 3.311(g).
 
7.02 DETERMINATION OF SERVICE INCURRENCE

    The results of injuries, including gunshot wounds, acquired before or after service will frequently be encountered. Substantiate the circumstances of the particular injuries which were incurred in service by official records or by other evidence as to incurrence in service in line of duty. A claimant may have been accepted for military service with a notation of one or more scars existing at the time of entrance. Subsequently, he or she may have sustained a wound, with a resulting scar, during service. Finally, after discharge from military service, he or she may have received an injury in civilian life which has resulted in a scar that would be present at subsequent physical examinations. Accordingly, exercise caution in characterizing a scar as the residual of a wound or injury incurred in military service. If there is any doubt on this point, simply describe the scar, without ascribing it to "gunshot wound," "shrapnel wound," etc. If the presence of a scar or scars is recorded in a physical examination report, review official records to ensure that the scar or scars are in fact the residuals of wounds in service. If there are any confusing data in this respect in the physical examination report, check official records against the medical examiner's statements to establish the facts.
 
7.03 DISABILITIES RELATED TO COMBAT

a.   General.     Title 38 CFR § 3.304(d) states that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. This regulation is derived from 38 U.S.C. § 1154(b), and lightens the evidentiary burden with respect to disabilities alleged to be the result of combat service.

b.   Three-Step Analysis.     There are three steps in applying this rule. The first step is to determine whether evidence submitted by the veteran, when considered alone, is satisfactory. Satisfactory evidence generally means evidence which is credible. In determining whether evidence is credible, it is proper to consider internal consistency and plausibility. Statements which contradict other evidence of record may be regarded as unsatisfactory. Second, it must be determined whether the evidence is consistent with the circumstances, conditions, or hardships of such service. If the veteran satisfies both of these requirements, a factual presumption arises that the alleged disease or injury was incurred or aggravated during service. Since 38 U.S.C. § 1154(b) stipulates that this presumption can be rebutted by clear and convincing evidence to the contrary, the third step requires a determination as to whether there is such contrary evidence. (Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996.)
 
7.04 DEFINITION OF INJURY--38 U.S.C. § 101(24) AND 38 CFR § 3.6(a)

    Active service is defined as including any period of inactive duty for training during which the claimant was disabled or died from an injury incurred or aggravated in line of duty. Nontraumatic incurrence or aggravation of a disease process during a period of inactive duty training is not defined as an injury, except for the following: an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurs during such training or while proceeding directly to or returning directly from such training. (See 38 CFR § 3.6) Additionally, if the evidence establishes that an individual suffers from a disabling condition as a result of the administration of an anthrax vaccine during inactive duty training, the individual may also be considered disabled by an injury. (See GCPREC 4-2002)
 
7.05 AGGRAVATION OF PRESERVICE DISABILITY

    A preexisting injury or disease may be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the condition (38 CFR § 3.306). Additionally, in Splane v. West, 2216 F. 3d 1058(2000), the United States Court of Appeals for the Federal Circuit held that 38 U.S.C. § 1112(a) establishes a presumption of aggravation for chronic diseases that existed prior to service, but first became manifest to a degree of disability of 10 percent or more within the presumptive period after service. Such presumption may be rebutted by affirmative evidence to the contrary, or evidence to establish that such disability is due to an intercurrent disease or injury suffered after separation from service (38 CFR § 3.307). Always address the issue of aggravation when service connection for a preservice disability is claimed. If service connection by aggravation is not found, the reasons and bases section of the rating should support the decision with relevant findings from the medical record before, during, and after service, demonstrating that the condition which pre-existed service has not increased in its severity.

a.   Consider a veteran to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service. When no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows the disease or injury existed prior to service and that it was not aggravated by service. (38 CFR § 3.304(b))

b.   Aggravation should not be conceded merely because a veteran's condition was in remission at the time of entry on active duty. The baseline for determining whether there is aggravation of a preexisting disability is in all of a veteran's medical records for that condition, not just those covering the period of enlistment and entry on active duty. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.

c.   The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (38 CFR § 3.306(b)(1))
 
7.06 CLAIMS FOR SECONDARY SERVICE CONNECTION BY AGGRAVATION

a.   Under the provisions of 38 CFR § 3.310(a), disabilities which are proximately due to or the result of a service-connected condition will be service connected. An increase in nonservice-connected disability caused by aggravation from a service-connected disability will also be service connected under 38 CFR § 3.310(a). (Allen v. Brown, 7 Vet. App. 439 (1995).)

b.   When all potentially relevant records have been obtained, or it is determined that no further evidence can be obtained, order an examination. The examiner must have all available evidence for review when providing an opinion on the issues of aggravation and the degree of increased disability.

c.   In order to adjudicate a claim for secondary service connection for an incremental change in an otherwise nonservice-connected disability, first establish the baseline level of nonservice-connected disability and the level of additional disability which is considered proximately due to the service-connected disability. Request a medical examination, including review of the claims folder, for this purpose. Identify for the examiner the evidence of particular relevance in the claims file. The examiner's report must separately address each of the following medical issues in order to be considered adequate for rating this type of claim:

(1)   The baseline manifestations which are due to the effects of nonservice-connected disease or injury;

(2)   The increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability based on medical considerations;

(3)   The medical considerations supporting an opinion that increased manifestations of a nonservice-connected disease or injury are proximately due to service-connected disability.

NOTE: Do not return the examination report as inadequate for rating purposes where the examiner indicates why it would be mere speculation to address issues (1), (2), or (3), as shown above.
 
7.07 INDIVIDUAL UNEMPLOYABILITY         Official VA Forms     Search on Form "21-8940"

a.   Requirements.     To establish entitlement to total compensation benefits because of individual unemployability, a veteran must claim to be unable to secure or retain employment by reason of service-connected disability. The veteran must meet the schedular requirements of 38 CFR § 4.16 or have an extra-schedular evaluation approved by the Compensation and Pension Service (211B); and be unemployable in fact by reason of service-connected disability. The rating activity must consider both the veteran's current physical condition and employment status when rating claims for total compensation because of individual unemployability. If a 100% service-connected evaluation is awarded, any pending claim for a total disability evaluation based on individual unemployability is moot. (See VAOPGCPREC 6-99.) Do not defer a decision as to the schedular degree of disability pending receipt of evidence sufficient to adjudicate the issue of individual unemployability.
 
7.08 EVIDENCE REQUIREMENTS         Official VA Forms     Search on Form "21-8940"

    A veteran must submit VA Form 21-8940 in order to certify employment status and establish eligibility for individual unemployability. Use this form as the basis for development of evidence to support the claim. When rating claims for total benefits because of individual unemployability, ensure the evidence is sufficient to evaluate both the veteran's current degree of disability and employment status. Develop all required evidence concurrently.

a.   Medical.     Evidence sufficient to support a current evaluation of the extent of all of the veteran's disabilities must be of record. The evidence shall reflect the veteran's condition within the past 12 months and include, but need not be limited to, results of VA examination, hospital reports, or outpatient treatment records. If the medical evidence of record is incomplete or inconsistent, schedule a medical examination to provide sufficient evidence to rate the claim. Request special tests only when required for proper evaluation of the degree of severity of relevant disabilities.

b.   Employment.     VA Form 21-8940 requires the veteran to furnish an employment history for the 5-year period preceding the date on which the veteran claims to have become too disabled to work and for the entire time after that date. It is essential that VA Form 21-8940 contain the work history. In addition, request each employer during the 12-month period prior to the date the veteran last worked to complete and return a VA Form 21-4192, "Request for Employment Information in Connection with Claim for Disability Benefits." Forms indicating only that the veteran retired will routinely require additional development to obtain information as to whether the veteran's retirement was by reason of disability, and if so, the nature of the disability for which retired.

c.   Social Security Disability Records.     If available evidence is insufficient to award individual unemployability benefits and the record shows that the veteran is receiving Social Security benefits because of disability, complete copies of the SSA records must be obtained and considered. (See pt. III, par. 9.01.)

d.   Vocational Rehabilitation Records

(1)   Vocational rehabilitation records must be obtained and considered in individual unemployability claims whenever there is indication that training was not found to be medically feasible. Also, vocational rehabilitation records should be reviewed if there is an indication that a veteran's attempt to be trained was unsuccessful.

(2)   The fact that a veteran either is participating in a program of rehabilitation or has completed such a program and is "rehabilitated" will not preclude a grant of total benefits because of individual unemployability. Deny claims or reduce awards only if the facts demonstrate that the veteran is not precluded from obtaining employment by reason of service-connected disability or has in fact obtained gainful employment.

e.   Self-Employment or Tightly Held Corporation

(1)   Development to produce evidence necessary to establish the degree to which service-connected conditions have impaired the veteran's ability to engage in self-employment must generally be more extensive than development where the veteran worked for others. Request the veteran to furnish a statement as to types of work performed, amount of time lost in the previous 12 months due to service-connected disabilities, and number of hours worked per week.

(2)   In the case of a self-employed person the issue for consideration is the relationship between the frequency and type of service performed by the veteran for the business and the veteran's net and gross earnings for the past 12 months. Low gross earnings tend to support a finding of marginal employment, especially when considered with the amount of time lost from work due to service-connected disablement. Low net earnings, on the other hand, must be considered in connection with gross income. High gross income tends to indicate that the veteran is capable of engaging in a substantially gainful occupation. Inability to make a profit is not synonymous with the inability to engage in substantially gainful employment.

(3)   A tightly or closely held corporation is usually a family corporation. If the veteran's name is the same as the corporation's, consider the possibility of a tightly held corporation. Since the veteran may control the amount of wages paid to himself/herself, do not make a finding of marginal employment solely on the basis of low wages. If reported wages appear low for the work performed, request a field examination per part III, chapter 8 to determine the veteran's relationship to the corporation and corporate earnings. The issue for consideration is whether the frequency and type of service performed by the veteran equates to substantially gainful employment. In this regard, evidence that the veteran received or was entitled to receive other remuneration from the corporation, such as stock dividends or loans, must be considered.
 
7.09 RATING PRACTICES AND PROCEDURES

a.   Rating Consideration.     Consider the following factors when rating claims for total benefits because of individual unemployability:

(1)   Make a decision as to whether the veteran meets the requirements for a schedular 100 percent evaluation before considering the issue of individual unemployability.

(2)   Verify that the disability requirements set out in 38 CFR § 4.16 are met. If the veteran specifically claims individual unemployability and any of the requirements of 38 CFR § 4.16 are not met, the rating should be formally coded to indicate denial of individual unemployability. If the veteran disagrees with the decision, the Statement of the Case should cite the relevant portion of 38 CFR § 4.16 as the authority for the denial.

(3)   Usually the evidence must establish that the service-connected conditions have precluded employment continuously since date of incurrence or the date the service-connected condition reached a static level of disability.

(4)   Establish individual employability on a factual basis. Do not presume individual unemployability.

(5)   Apply the concept of average impairment in earning capacity to determinations of the percentage of disability, not to determinations as to entitlement to total compensation because of individual unemployability.

(6)   The terms "unemployability" and "unemployable" are not synonymous for compensation purposes. A veteran may be unemployed or unemployable for a variety of reasons. A determination as to entitlement to total benefits because of individual unemployability is appropriate only when a veteran's unemployability is a result of service-connected disabilities.

(7)   When considering the issue of entitlement to total compensation benefits because of individual unemployability, substantially gainful employment is defined as that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.

(8) (a)   In an individual unemployability determination, marginal employment shall not be considered substantially gainful employment. Marginal employment exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (which includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consider the nature of the employment and the reason for termination in all claims. (38 CFR § 4.16)

(b)   Poverty thresholds are contained in Addendum A to this chapter. The Bureau of the Census revises the poverty thresholds annually. When the revised amounts are published, VBA will publish notices in the Federal Register and revise Addendum A.

(9)   Determine whether the severity of the service-connected conditions preclude the veteran from obtaining or retaining substantially gainful employment. Identify and isolate the effects of extraneous factors such as age, nonservice-connected conditions, intercurrent injuries, availability of work, or voluntary withdrawal from the labor market when determining whether a veteran is unemployable solely by reason of service-connected disability. Include sufficient data in the Reasons for Decision of the conclusion. A grant of individual unemployability must contain an explanation or analysis that shows how impairment from service-connected disability supports the grant. A conclusory statement alone that the criteria for individual unemployability are met does not satisfy the requirement to state the basis for the grant.

b.   Preparation of Ratings

(1)   If schedular requirements are met but individual unemployability is denied, the rating must provide an explanation of all pertinent subsidiary determinations. (See 38 CFR § 4.16 and 4.18.)

(2)   When a veteran is considered unemployable due to nonservice-connected factors, an explanation of the reasons for this decision must be included. In addition, the RVSR must also set forth its reasoning for finding that service-connected disabilities do not cause unemployability without regard to nonservice-connected conditions.

(3)   If the veteran is considered employable, the RVSR need only explain the facts which are pertinent to that conclusion.

(4)   If schedular requirements are not met, the absence of a basis for extra-schedular submission must be noted. (38 CFR § 3.321(b)(1), § 4.16(b))

(5)   Whenever individual unemployability is granted and permanency is established, the following statement must be included in the rating conclusion: "Basic eligibility under 38 U.S.C. Chapter 35 is established from [date]." This applies regardless of whether or not there appear to be any potential dependents.
 
7.13 REQUIREMENTS

If the veteran is

* age 65 or older;
* a patient in a nursing home for long-term care because of disability; or
* disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner (Social Security disability insurance or Supplemental Security Income), then he or she will be presumed to be permanently and totally disabled for pension purposes. (Claimants age 62-65 only must provide a copy of the letter awarding Social Security disability. This is considered an interim procedure until such time VA can acquire the disability evidence through SHARE.) See also Part III, 5.19.

In all the above instances the award should be annotated with the appropriate reason for granting pension. Otherwise, a veteran must be shown by rating to:

* meet the disability percentage requirements set forth in 38 CFR § 4.17 or have an extra-schedular evaluation approved under 38 CFR § 3.321(b)(2); and
* be unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent. The veteran must be either unemployed or marginally employed. It must be kept in mind that "unemployed" is not synonymous with and does not necessarily mean "unemployable." However, the greater the disability, the less the need of other evidence of unemployability. In these instances a rating is required.
 
7.14 UNEMPLOYABILITY

a.  Ability To Secure Employment.     Unemployability is established if the evidence shows inability to secure and retain substantially gainful employment by reason of disability as well as related factors. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. "To secure employment" involves the consideration of the attempts made by the veteran to obtain work of the type the veteran is capable of performing in the area of residence. The kind and sufficiency of evidence needed to establish reasonable efforts to secure employment will vary with the facts of the individual case. In many instances, the veteran's unsupported statement will suffice if it is consistent with the other facts of the case including such considerations as a good work record. In others, evidence will be required from past and prospective employers. In this respect, bear in mind some employers may be reluctant to say they have refused to hire an individual because of age, or age and disability combined.

b.   Ability To Retain Employment.     The "ability to retain employment" once it is secured is a necessary element of employability and envisages sustained performance as contrasted with temporary or sporadic work.

c.   Employment in Household Duties.     A veteran whose sole employment consists of performance of household duties may qualify as unemployable if the veteran is no longer able to perform the principal household duties without substantial help.

d.   Nonprogression of Disability.     The fact that the veteran's records show that, prior to discontinuance of employment, there was full-time work with about the same degree of disability as presently exists is not in itself a proper basis for holding the veteran employable. Moderate progression of disabling conditions considered with advancing age may compel termination of employment by a person who had been working despite disability.

e.   Mandatory Retirement.     Do not use the forced discontinuance of work upon reaching mandatory retirement age (or optional retirement in many cases) as the sole reason for regarding the veteran to be unemployable. Rather, the determinative factors are whether the veteran's disability and age prevent the veteran from obtaining another position. Steady employment over a long period is ordinarily an indication of the veteran's desire to work.
 
7.15 MARGINAL EMPLOYMENT

a.   Definition.     Marginal employment exists if, by reason of age and disability, the veteran works less than one-half the usual hours or receives less than one-half the prevailing community wage for the particular occupation. To qualify as marginal employment under 38 CFR § 4.17(a), either of the criteria will suffice.

b.   Marginal Occupations.     In many areas there are jobs available where the pay is too low to attract the able-bodied and which, therefore, must be filled by older and disabled persons. However, they do require the employees to be present for a full workweek, and the pay is the same for the particular occupation throughout the community. These jobs are generally sedentary. Many of the jobs are of the type that will qualify under 38 CFR 3.342(b)(4). The employment contemplated by this regulation is in jobs set up by local custom or practice as positions to be filled by the aged or the disabled.

c.   Factors for Consideration.     Factors pertinent to the issue of marginal employment include the following, but no single element should in itself be regarded as determinative:

(1)   Prior work history and earnings compared with the present may have a relationship to and be evidence of the extent of the veteran's disability. A marked reduction of earnings may be indicative of a comparable decrease in mental or physical capabilities.

(2)   The established wage for a particular type of job in the community.

(3)   Opportunity for employment in the community.

(4)   The type of disability in relation to the work for which the veteran is qualified by experience, education and training.
 
7.16 FACTORS RELATING TO UNEMPLOYABILITY OR MARGINAL EMPLOYMENT OF FARMERS   .. go to 7.16 in guidelines for complete details please.
 
7.20 PRESUMPTIVE DISEASES ASSOCIATED WITH EXPOSURE TO HERBICIDE AGENTS

Note: The presumption of service connection under 38 CFR § 3.307(a)(6) and 38 CFR § 3.309(e) applies only to veterans who served on active duty within the boundaries of the Republic of Vietnam during the Vietnam era.

  a.   Herbicide Agents.     "Herbicide agent" means a chemical used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant, TCDD; cacodylic acid; and picloram.
(38 CFR § 3.307(a)(6)(i))

b.   Exposure

(1)   Exposure in Vietnam.     Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent. The last date of exposure is the last date on which he or she served in the Republic of Vietnam during the Vietnam era (38 CFR § 3.307((a)(6)(iii)).

(2)   Exposure Along the DMZ in Korea.     Herbicide agents were used along the southern boundary of the demilitarized zone (DMZ) in Korea between April 1968 and July 1969. The Department of Defense (DoD) has identified specific units that were assigned or rotated to areas along the DMZ where herbicides were used. Concede herbicide exposure for veterans who allege service along the DMZ in Korea and were assigned to one of the units shown below between April 1968 and July 1969.     See Military Unit Chart in Guidelines under 7.20  (b) (2).

Note: If a veteran was assigned to a unit other than one listed in the table in 7.20b(2) and alleges service along the DMZ between April 1968 and July 1969, contact the Center for Unit Records Research (CURR) for verification of the location of the veteran's unit. (See Part III, paragraph 5.10.)

(3)  Exposure Other Than in Vietnam or Along the DMZ in Korea

(a)   General.     If a veteran claims exposure to herbicide agents other than in Vietnam during the Vietnam Era or in Korea as specified in 7.20b(2), ask the veteran for the approximate date(s), location and nature of exposure. After obtaining a detailed description, contact the Compensation and Pension (C&P) Service via e-mail at VAVBAWAS/CO/214A, and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If a negative response is received from the C&P Service, and the veteran furnishes sufficient details of the alleged exposure, contact CURR for verification.

(b)     Storage of Herbicides on Johnston Island.     Herbicide agents were stored in drums on Johnston Island in the north Pacific between April 1972 and September 1977. (See Addendum D.) Because military contractors were responsible for the inventory, very few military personnel who served on Johnston Island had duties that involved the direct handling of herbicides. If a veteran alleges exposure to herbicide agents during service on Johnston Island, develop for exposure on a factual basis.

d.   The Nehmer Stipulation (38 CFR § 3.816)

(6)   Scope of Retroactive Payment Provisions

(a)   No Requirement of a Claim That Specifically Mentions Herbicide Exposure. In its February 11, 1999 order the district court held that a Nehmer class member's compensation or DIC claim need only have requested service connection for the condition in question to qualify as a Nehmer claim. It is not necessary that the claim have asserted that the condition was caused by herbicide exposure.

Example:   A veteran with Vietnam service filed a claim in 1994, expressly alleging that his prostate cancer was caused by exposure to ionizing radiation in service prior to his service in Vietnam. VA denied the claim in 1995. The veteran reopened the claim in 1997, and service connection was granted. On these facts, the effective date must relate back to the 1994 claim, even though the veteran alleged a different basis for service connection.

(b)   Porphyria Cutanea Tarda (PCT).     Title 38 CFR § 3.311a(d), which was published on October 21, 1991, stated that sound scientific and medical evidence did not establish a significant statistical association between herbicide exposure and PCT. A denial of PCT under 38 CFR § 3.311a after October 20, 1991, was valid and an earlier effective date for benefits would not be assigned under 38 CFR § 3.816. However, a claim for PCT which was denied between September 24, 1985, and October 21, 1991, would be considered for an earlier effective date under 38 CFR § 3.816.

(c)   Type 2 Diabetes Mellitus.     Effective May 8, 2001, Type 2 diabetes mellitus became subject to presumptive service connection under 38 CFR § 3.309(e). Retroactive benefits under the Nehmer review may be warranted for claims for service connection for Type 2 diabetes filed or denied during the period from September 25, 1985 to May 7, 2001. If a prior claim did not involve service connection for Type 2 diabetes, it generally would not provide a basis for an earlier effective date. However, a lack of specificity in the initial claim may be clarified by later submissions. 7-IV-5

Example 1:   In January 1987, a veteran claimed compensation for hyperglycemia. In developing the claim, VA obtained medical records indicating that the veteran was diagnosed with Type 2 diabetes in February 1987. On these facts, it would be reasonable to treat the January 1987 claim as a claim for service connection of Type 2 diabetes. Under 38 CFR § 3.816, benefits may be paid retroactive to the later of the date of that claim or the date the disability arose, as determined by the facts of the case.

Example 2:   In 1995, a veteran claimed compensation for hyperglycemia. Medical records obtained by VA indicated the veteran did not have Type 2 diabetes. In 2001, the veteran claimed compensation for Type 2 diabetes, submitting evidence showing that the condition was diagnosed in 1996. On these facts, the 1995 claim was not a claim for service connection of Type 2 diabetes, as neither the application nor the evidence of record suggested the presence of Type 2 diabetes.
 
[YOUR ADVOCATE COMMENTS]

    I was diagnosed with Diabetes, Type II, in 1992.     When I went to request my VAMC/Long Beach medical records from that date, I was told that there were only "medical notes" and no actual medical records on file.     I researched my papers and medications indicating the primary care doctor assigned to me for that early period plus prescriptions for tablet or oral medication for Type II.     CONCLUSION:   keep everything.

Source:   Part 6, Chapter 7