3.157 - My Question To Jim Strickland

[carlie]

GUESS THIS IS GOOD TO STUDY

This section § 3.157 refers to *existing* ratings and increases thereof.

You ask, "IF THE FORMAL CLAIM FOR COMP WAS DISALLOWED THEN HOW CAN IT BE SC'D ----- SPECIFICALLY IF VA DID NOT SC THE ISSUE EVEN AT ZERO PERCENT?"

If a veteran has an examination (any exam, not only C&P), by the action of the veteran or his representative submitting the exam to the VARO, an informal claim to raise an existing rating is established.

§3.157 (a) "A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits..."

If the existing ratings include (or not) a zero percent evaluation, the new examination is considered as a claim to increase the existing rating and/or to reopen the non-compensable rating for a rating that would be compensable.

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF, CHAPTER I, PART 4, Subpart A_General Policy in Rating

Sec. 4.31 Zero percent evaluations. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

In your example of the code, we see

(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. etc.

Thus, the "formal claim for compensation was disallowed" because "the schedule does not provide a zero percent evaluation for a diagnostic code" and so "a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met."

Some SC disabilities are not compensable in degree. In other words, the ratings schedule simply doesn't list 0% as a degree of compensation. Other SC disabilities are compensable from 0% to 100%. See TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF, CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS, PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents, Subpart B_Disability Ratings, Sec. 4.84a Schedule of ratings--eye, Numbers 6000 - 6009 where it tells us, "The above disabilities, in chronic form, are to be rated from 10 percent to 100 percent for impairment of visual acuity..."

Thus, if a veteran's exam showed #6003 Iritis and the iritis condition was service connected but not severe enough to rate at 10%, the 0% rating would be assigned. "the service-connected disability is not compensable in degree..."

If the veteran was examined and had a report of 6018 Conjunctivitis, the schedule has a 0% rating available.

Thus, if a formal claim for compensation is disallowed because it is not compensable in degree it is still a service connected condition.

Is the lack of the 0% rating at every condition an oversight as the rules were morphed over the years? Probably. That there is the language " "a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." is a clue that somewhere along the line someone noticed and threw that term in to correct the oversights.

You'd have to dig through the Federal Register with your Sherlock holmes magnifying glass to determine how the minor changes occurred over time. I'll leave that to you. On my most sleepless nights, the mere mention of the Federal Register puts my lights out for a good nights sleep!

All best,

Jim

[Wings]

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Good results! Thank you! ~Wings

[free_spirit_etc]

Yes. Thanks alot! I got quite a bit out of the other thread also.

I had been trying to understand how my husband got a zero percent rating for some conditions - because they existed, but were not disabling - but yet was denied service connection for another because it was not considered a "current disability."

Still trying to make sense out of some of that stuff.

But I do understand this part a lot better.

Free

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Good results! Thank you! ~Wings

[Teac]

Just something to think about....

I wonder about my hearing claim in 1986 were the va stated my hearing was within normal limits and denied service connection even thought my active duty medical records and retirement physical clearly stated that I had a high frequency hearing loss.

When I tried to get service connectin again in 1992, I received the same wording in the denial

Yet in 2005, after obtaining two seperate hearing exams and IMO, and submited a claim for hearing loss and tinnitis I was granted 0% for the hearing. When I claimed cue for the previous denials they again told me my hearing was within normal limits at the time of my retirement.

Now to me it stands to reason if the va grants the award in 2005 and the only thing that has changed is that I had two seperate IMO then I should have been awarded service connected of 0% in 1986....

[Wings]

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Several 0% ratings will add up to a compensatable degree. I forget the regulation. Alzimers (sp)!! ~~Wings

[Teac]

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Several 0% ratings will add up to a compensatable degree. I forget the regulation. Alzimers (sp)!! ~~Wings

Yes I think it is two 0% ratings can be increased to one 10% rating but only if you have nothing but the 0% ratings.

[Wings]

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38 CFR 3.324 Multiple noncompensable service-connected disabilities.

Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rating.

[40 FR 56435, Dec. 3, 1975]