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

[free_spirit_etc]

Yeah.. I sure agree with you. I sure don't have high frequency hearing loss. I can hear dog whistles. I didn't know people aren't supposed to hear them. I blew on one - and OUCH -- what a horrid squealing sound they make...

Seems like tinnitus would be higher than zero percent. I fail to understand how a person can have ringing, buzzing, or anything else going on in their head - and it NOT affect them.

I also think my husband's neck injury should have been granted and rated at AT LEAST zero percent - since he had an in service injury, complaint of pain, and a finding of something on the disk plates in the x-ray that correlated with where he was complaining about the pain.

Of course, the first C&P stated he had an injury in the SMR's - but that the x-ray showed no problem.

The second C&P said they found a SLIGHT problem on the x-ray - but THAT examiner didn't find the injury documented in the SMR's.

So each one missed the connection - one by not finding a current disability - and the next one by finding the current disability , but not finding the injury in the SMR.

Seems like he could have just READ the first C&P and noted that the FIRST C&P had FOUND it in the SMR -- or maybe even READ the SMR's until he FOUND it.

Anyway - it was probably a CUE - but as a widow I don't think I can raise that as a CUE, as he had not raised it in his lifetime.

I STILL think that an inferred claim for an INCREASED rating could come into play with it though.

He WAS granted SC for arthritis. Though that claim was for the lower back - the fact that he had continuously ALSO complained of pain in his NECK, and the fact that the headache C&P indicated some of his headaches were caused by the arthritis in his NECK - and the fact that the doctor included an X_RAY of his neck and CIRCLED the PLACE that was CAUSING the pain - which was the same dang place they said had a SLIGHT problem in 2001 - and the same dang place he told them hurt when he RETIRED in 1998 (though they couldn't find a "current" disability on the x-ray) - I think that might be able to be considered an INFERRED claim for an INCREASED rating for ARTHRITIS - in that it was now affecting ANOTHER joint that had an IN SERVICE injury.

I will still have to check that out a bit - for the accrued benefits part of my claim -- and I think I will claim it - if for no other reason than, even if it gets denied -- I will still get to state "He kept TELLING you his neck HURT!!! And here is x-ray PROOF that it DID hurt!"

Even if they deny me on some legal technical thing on inferred claims - at least I will be able to stand up for him, and stand up for his integrity - and say "He told you his neck hurt. He is not a liar."

He did not really have much cancer pain, but boy did his neck hurt. At least with the cancer he was able to get morphine to take - which he took for his neck.

It just ticks me off that even when he was dying of cancer, his complaint was how much his neck hurt - and the VA had never acknowledged it as a SC injury.

Free

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....