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1151 C&p Update


LeroyJohnson

Question

I finally got the results of my 1151 eye C&P I was surprised that the VA doctor who examined me did not in any way try to say the VA was not at fault. He stated that I have light perception only in my right eye and that my left eye has sever loss of vision field.. I am hoping that this C&P was more for the purposes of rating than denying. nothing negative was said at all much to my surprise. I kind of figured they would try to pull something and make it as negative as possible. Guess now we wait and see what happens next.

Sure wish I knew how they would rate this do they rate on the loss they caused me or on the eye I have left. Berta gave me a guess on this a very long time ago but my memory is playing games with me and I cant remember what she said. I do want to thank Berta for all the help she has given me by answering my questions Leroy

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Leroy,

So glad to hear that good news. The way I understand it, the VA will determine your condition before and after and pay the difference as if service connected. For instance, if you had no disability before the VA messed you up, and now you rate at 70%, it will pay you 70%. But if you were 20% before and 70% after, it will pay you 50%. Don't forget Special Monthly Compensation is payable in 1151 cases too.

I don't know if your eye condition is NSC or SC, but you might want to read this from the BVA.

Carrie

Department of

Veterans Affairs

Memorandum

Date: February 2, 2001 VAOPGCPREC___4-2001

From: Acting General Counsel (022)

Subj: Rating Disability Compensated Under 38 U.S.C. § 1151 As If Service Connected--38 C.F.R. §§

3.322(a) and 4.22

To: Chairman, Board of Veterans’ Appeals (01)

QUESTION PRESENTED:

Do 38 C.F.R. §§ 3.322(a) and 4.22 apply to the rating of a disability for which compensation is payable under 38 U.S.C. § 1151 as if the disability were service connected?

COMMENTS:

1. The question presented arose under the following circumstances. In October 1990, a veteran claimed compensation for additional disability resulting from the worsening of his nonservice-connected incomplete quadriplegia by therapy he received in a VA hospital. The Board of Veterans' Appeals found that his quadriplegia permanently worsened as a result of the VA treatment and granted entitlement to compensation under 38 U.S.C. § 1151 for loss of use of the lower extremities. In implementing the Board’s decision, a regional office assigned a noncompensable rating for the incomplete quadriplegia because the condition was totally disabling at the time of the VA treatment and “there is no additional disability to warrant . . . a higher evaluation.”

2. With respect to the rating of disabilities aggravated by service, 38 C.F.R. § 3.322(a) provides:

In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made. The text of 38 C.F.R. § 4.22 differs from that of section 3.322(a) in no material respect.

3. Thus, generally, when rating a disability that has been service connected on the basis of aggravation by service, VA is to deduct from the current level of disability the level of disability existing at entrance into service. There are two exceptions to this general rule. No deduction is to be made if (1) the level of disability at entrance into service is not ascertainable or (2) the disability is total. The general rule embodies the principle that “service connection for aggravation of a disability includes only the degree by which the disability increased in severity during service.” Verdon v. Brown, 8 Vet. App. 529, 537 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (if aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for only the degree of disability over and above the degree of disability existing before the aggravation). However, the fact that service has aggravated a disease or injury does not necessarily imply that the degree of increased disability itself will be compensable. See Hensley v. Brown, 5 Vet. App. 155, 163 (1993) (in-service increase in disability may give rise to a presumption of aggravation under 38 U.S.C. § 1153 even though the increase is insufficient to warrant a compensable rating).

4. Although compensation payable to a veteran is generally for service-connected disability, 38 U.S.C. § 101(13), 38 U.S.C. § 1151 authorizes compensation payable to a veteran for certain disabilities that are not service connected. As applicable to the veteran’s October 1990 claim, section 1151 provided:

Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, [or] medical or surgical treatment, . . . and such injury or aggravation results in additional disability to . . . such veteran, disability . . . compensation . . . shall be awarded in the same manner as if such disability, [or] aggravation . . . were service-connected. 38 U.S.C. § 1151 (1996). Thus, an additional disability resulting from aggravation of an injury by VA medical treatment is to be compensated as though it were a service-connected disability. As with a service-connected disability resulting from service aggravation of a pre-existing disease or injury, section 1151 compensation should be paid for only the “additional disability,” i.e., the degree of disability over and above the degree of disability existing before the aggravation by medical treatment. As with a service-connected aggravation, that additional disability need not necessarily be of compensable degree in itself.

5. In this case, the Board of Veterans' Appeals found that the veteran suffered aggravation of an injury as the result of VA treatment and granted entitlement to section 1151 compensation for the resulting additional disability. Section 1151 requires that compensation be awarded as if the additional disability were service connected. If a disability were service connected as aggravated by service, then sections 3.322(a) and 4.22 would require that the degree of disability, if ascertainable, at the time of entrance into service be deducted from the current degree of disability to determine the rate at which compensation should be paid, unless the disability is totally disabling. We find nothing in the language of sections 1151, 3.322(a), or 4.22 or in their histories to indicate an intent not to apply the same general rule and exception in the case of a disability compensated under section 1151 on the basis of its aggravation by VA treatment. The reference in sections 3.322(a) and 4.22 to “cases involving aggravation by active service” might seem to limit the application of those regulations to cases of actual service connection based on aggravation. However, section 1151’s mandate to compensate additional disability “in the same manner as if . . . service-connected” means that rules applicable to service-connected disabilities must be applied to disabilities compensated under section 1151.

6. Under sections 3.322(a) and 4.22, no deduction is to be made “if the disability is total.” To the extent of any ambiguity in this language, we interpret it to mean that no deduction will be made if the disability after aggravation is total. This exception to the general rule is an exception to the principle that service connection for aggravation of a disability includes only the degree by which the disability increased in severity during service. Our examination of the regulations’ histories has failed to disclose the rationale for, or policy behind, this exception. Therefore, we have no basis for concluding that the exception should not be applied when rating disabilities compensated under section 1151 based on aggravation. We recognize that diseases or injuries aggravated by service can differ from injuries aggravated as a result of VA treatment in that disease or injury pre-existing service is unlikely to be anywhere near totally disabling, whereas it is not at all unlikely that an injury for which a veteran receives VA treatment is totally disabling. Nevertheless, because we are unable to discern an express policy or rationale behind the exception in sections 3.322(a) and 4.22 for total disabilities, we conclude that the exception applies to rating disabilities compensable under section 1151 based on aggravation.

HELD:

Sections 3.322(a) and 4.22 of title 38, Code of Federal Regulations, require that, in rating disabilities aggravated by service, the degree of disability existing at the time of entrance into service, if ascertainable, be deducted from the present degree of disability unless the present degree of disability is total, in which case no deduction is made. These provisions apply to the rating of disabilities compensated under 38 U.S.C. § 1151, which, before its amendment effective October 1, 1997, authorized compensation for additional disability resulting from injury or aggravation of an injury as a result of Department of Veterans Affairs hospitalization, medical or surgical treatment, examination, or pursuit of a course of vocational rehabilitation, in the same manner as if the additional disability were service connected.

John H. Thompson

Attachment: claim folder

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my 1151 case is the result of a cataract removal surgery gone wrong. It is not sc or as if sc at this time still waiting but really don't expect it to be much longer before I hear something The C&P seemed to deal more with the vision I have in my left eye which he stated has sever 10-degree tubular field vision and a nuclear sclerosing cataract in it . The eye they removed the cataract in he stated had a detached retina likely caused by the surgery (uncorrected) light perception only. The day of the surgery to remove the cataract when they removed it and placed the lens in it I could see and it was recorded as 20/30 vision that day. The next day I began seeing halo's and things floating in my eye it also is in the record.

Leroy

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  • HadIt.com Elder

I hope that you can recover from this.

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