Va Training Letters - An Index?

[john49]

After reading a VA training letter (02-04) on intervertebral disc syndrome I ran across this in a DAV service bulletin:

"Training Letters contain additional information about topics that is not available in the regulations or manuals. The purpose of these letters is to educate as well as inform. Training Letters do not replace manual or regulation information, they only supplement them. The following are being disseminated to all National Service Officers (NSOs) in an effort to keep them informed of relevant VA training activities. NSOs are encouraged to access the VA‟s Intranet for the complete document(s) listed below and to periodically review for updated Training Letters."

Since my search of the internet does not turn up very many other training letters, I wonder if some of you VSO's might help.

I am NOT asking for you to do anything illegal, immoral or otherwise against the rules, BUT would it be possible for you to access the VA's intranet and post an index to what training letters exist? With that info maybe we could then ask our representatives for a copy of a specific letter. Or if you know of a link to others please post it.

Don't send flames, a simple can't, won't or will do will suffice.

John49

[broncovet]

What a great idea! I have read at least one training letter that does a pretty good job of summarizing and applying applicable regulations.

I think an index with links to these would be very valuable.

[broncovet]

Try this link to Training letters, there are several:

http://vets.yuku.com/reply/375848/t/VA-Training-Letter-Information-Multiple-Areas.html#reply-375848

[broncovet]

Training Letter: IU

Training Letter 07-01

TotalDisability Ratings Based on Individual Unemployability(IU)

Benefits granted under the VA rating schedule areintended to compensate veterans for the average impairment in earningcapacity that results from service-connected disease or injury. IU isa special additional benefit to address the truly unique disabilitypicture of a veteran who is unemployable due to service-connecteddisability, but for whom the application of the rating schedule doesnot fully reflect the veteran’s level of impairment. An award of IUallows the veteran to receive compensation at a rate equivalent tothat of a 100 percent schedular award. However, this benefit is notintended, by regulation or policy, to be a quasi-automatic benefitgranted whenever a veteran has met a qualifying schedular evaluationor reached an advanced age.

When raised as an issue, IU isappropriate only in exceptional cases. First determine if theveteran’s disability(ies) warrant a 100 percent schedularevaluation before considering whether to assign a total disabilityrating under either 38 CFR 4.16 or 3.321.

1. GeneralRequirements for Entitlement to IU

Entitlement to IUrequires that the veteran meet certain initial criteria listed at 38CFR 4.16 as well as continuing criteria as explained below. The IUbenefit continues only as long as the veteran remains unemployable.VA monitors the employment status of IU beneficiaries and requiresthat they submit an annual certification ofunemployability.

Consideration for IU requires that:

oThe veteran has service-connected disability(ies) as described in 38CFR 4.16(a) or 4.16(b), and

 The evidence showsunemployability due to a service-connected disability.

1.a.Schedular Requirements

The qualifying schedular evaluations areprovided at § 4.16(a). The veteran must be service connected for asingle disability evaluated at least 60 percent disabling or serviceconnected for multiple disabilities evaluated at least 70 percentdisabling, with one of the multiple disabilities rated at least 40percent disabling. This section also provides a list of circumstanceswhere the requirement for a single 60 or 40 percent disability may bemet by a combination of disabilities that can be considered a singledisability (such as those arising from common etiology or a singleaccident, or those affecting a single body system, etc.).

Carefulconsideration must also be given to the cause of the veteran’sunemployability.

Unemployability must result from one ormore service-connected disabilities. Disabilities for which serviceconnection has not been granted do not qualify for consideration as asource of unemployability.

If the veteran does not meetthe requirements of 38 CFR 4.16(a) but there is evidence ofunemployability due to a service-connected disability, then the caseshould be submitted to the Director of Compensation and PensionService for a determination of eligibility, as provided at 38 CFR3.321(b) and 4.16(b).

1.b.Unemployability

Unemployability means the inability of aveteran to secure or follow a substantially gainful occupation. Afinding of unemployability cannot be made if the evidence shows thatthe veteran is engaged in, or is capable of being engaged in, asubstantially gainful occupation. However, a finding could be made ifthe evidence shows marginal employment. Marginal employment isdefined in terms of a veteran’s earned annual income. This incomeshould generally not exceed the government’s established povertythreshold for one person. Exceeding this threshold may indicate asubstantially gainful occupation, as noted by the Court of Appealsfor Veteran’s Claims (CAVC) in Faust v. West, 13 Vet.App. 342(2000), where a substantially gainful occupation was defined as "onethat provides annual income that exceeds the poverty threshold forone person."

In addition to the income criterion,evidence showing that employment is marginal rather thansubstantially gainful may also exist on a "facts found"basis. Examples of this marginal status include employment in theprotected environment of a family business or sheltered workshop.Such fact-based marginal employment is consistent with a finding ofunemployability.

1.c. Age Factor

It is clearfrom 38 CFR 4.19 that consideration of a veteran’s age isappropriate when evaluating disabilities for pension claims, but notfor awarding IU benefits. The regulation states that unemployabilityassociated with advancing age may not be used as a basis for a totaldisability rating in service-connected claims. This provision isechoed at 38 CFR 3.341, which states that the service-connecteddisability must be sufficient to produce unemployability withoutregard to advancing age.

Advancing age in this contextmay relate to voluntary retirement or removal from the work forcebased on tenure or longevity rather than disability. Voluntaryretirement does not necessarily show unemployability and should notbe used as the only evidence of unemployability. Therefore, whenevaluating a claim for IU received from a retired veteran of advancedage, careful consideration must be given to distinguishing a worseneddisability that would have caused unemployability from unemploymentdue to retirement. When an IU claim is received from a veteran ofadvanced age, the rating should discuss the factor of age and providean explanation of how the available evidence was evaluated to arriveat the decision to grant or deny IU.

2. Claims forIU

Claims for IU are generally submitted by the veteran butmay also be reasonably raised by the evidence of record, includingstatements or evidence submitted by the veteran indicatingunemployability. IU claims filed by the veteran can be considered asclaims for an increased evaluation when associated with evidence of aworsened service-connected condition. Claims for an increasedevaluation, even without a specific IU claim from the veteran, maygive rise to a claim for IU that must be considered.

2.a.Reasonably Raised or Informal Claims

In Norris v. West, 12Vet.App. 413 (1999), the Court held that where the rating activity isconsidering a claim for increased evaluation from a veteran who meetsthe qualifying schedular disability percentage requirements and thereis evidence in the claims folder, or under VA control, which showsunemployability due to service-connected disability, then a ratingfor the claimed increase must also include a rating of a reasonablyraised claim for IU. Thus, under the proper circumstances, a claimfor IU exists, even though the veteran did not specifically make theclaim.

The issue of a reasonably raised claim for IU wasalso addressed in the Federal Circuit case of Roberson v. Principi,251 F.3d 1378 (Fed. Cir. 2001). In that case, the Court held thatonce a veteran submits evidence of a medical disability, makes aclaim for the highest possible rating, and submits evidence ofunemployability, the requirement of 38 CFR 3.155(a) that a claimantmust "identify the benefit sought" is met. In such cases,VA must consider total disability based upon IU. The Court notedthat, under these circumstances, the IU benefit being sought has beenidentified in conformity with the informal claim requirements of §3.155(a). (See also, Servello v. Derwinski, 3 Vet.App. 196, 199(1992) (veteran must provide evidence of entitlement to IU rating byvirtue of unemployability)). The Court further stated that VA isobligated to develop a claim "to its optimum," which meansconsidering all potential claims raised by the evidence and applyingall relevant laws and regulations, regardless of whether the claim isspecifically labeled as a claim for IU. Under circumstances wherethese conditions apply, but where the veteran does not meet theschedular requirements of § 4.16(a), the case should be referred forextra-schedular consideration as specified at § 4.16(b).

Whenthe veteran has already been awarded a 100 percent total evaluationfor one disability, an award of IU for a separate disability ordisabilities should not be considered. The VA Office of GeneralCounsel held in VAOPGCPREC 6-99, that when a schedular totaldisability grant has already been made, no additional monetarybenefit would be available to a veteran based on unemployability andany such claim would be moot.

2.b. Claim for IUDefined

• A formal claim for IU on VA Form21-8940.

• Any written communication indicating thatthe veteran is unable to work because of his or her service-connecteddisability(ies).

• To raise an informal IU claim, theveteran must claim an increased evaluation for his or herservice-connected disability(ies), submit medical evidence or beshown on VA examination to meet the requirements of § 4.16, andclaim the inability to work due to his or her service-connecteddisability.

• Although a claimant who seeks anincreased rating is presumed to be seeking the highest ratingpossible, a claim for IU cannot reasonably be raised unless theveteran claims to be unable to maintain substantially gainfulemployment due to service-connected disability.

3. IUClaim Development

3.a. VA Forms 21-8940 and 21-4192

Claimsfor IU require that a VA Form (VAF) 21-8940, Veteran’s Applicationfor Increased Evaluation Based on Unemployability, be completed andsubmitted to the VA regional office by the veteran. If an IU claimhas been reasonably raised by the evidence of record, a VAF 21-8940must be sent to the veteran for completion and return before an awardcan be considered. The VAF 21-8940 requires that the veteran list allemployment for the five years prior to becoming too disabled to workand provide an accounting of current income. If the VAF 21-8940 isnot returned by the veteran within 60 days, a formal rating decisionwill be made on the basis of the evidence of record, which considers,among other factors, that necessary evidence was not furnished by theclaimant. If the VAF 21-8940 is returned after the rating decision isissued, but within one year of the date sent, the claim should bere-rated. See also section 4.d., Effective Dates for ReasonablyRaised IU Claims.

Once the regional office receives VAF21-8940 and former employers are identified, then VAF 21-4192,Request for Employment Information in Connection with Claim forDisability Benefit, will be forwarded to the former employers listedon the form. The VAF 21-4192 requests that the employer provideinformation about the veteran’s job duties, on-the-job concessions,date of and reason for job termination, etc. Information given onboth VAF 21-8940 and VAF 21-4192 is essential to a fair evaluation ofthe IU claim. However, IU benefits should not be denied solelybecause an employer failed to respond to VAF 21-4192.

3.b.Medical Evidence

The available medical evidence must showthat a service-connected physical or mental condition is currently sosevere and disabling that it prevents the veteran from securing orfollowing a substantially gainful occupation. Any relevant medicalevidence must be obtained from both VA and private sources as part ofthe development and evaluation process. These documents may containdescriptions of physical limitations caused by a service-connecteddisability or may contain opinions by medical professionals regardingthe veteran’s ability or inability to engage in work-relatedactivity. If the evidence obtained is incomplete or inconsistent anddoes not provide a basis for assessing unemployability, then a VAexamination should be scheduled, as provided under 38 CFR 3.326 and3.159©(4). The medical examiner should be requested to provide anopinion regarding the effect of the service-connected disabilities onthe veteran’s ability to engage in substantially gainfulemployment. Further, because it is preferable to rate a veteran as100 percent disabled on a schedular basis as opposed to awarding IU,order an examination for each service-connected condition that is notat the maximum schedular evaluation.

3.c. VocationalRehabilitation and Employment Service (VR&E) Records

Whenthe veteran’s claims folder indicates that he or she has been seenby VR&E Service, any records related to this contact must beobtained and evaluated. The records may document the veteran’sparticipation in a training program or may show that training was notfeasible or was unsuccessful. The VR&E records provide importantevidence for evaluating current unemployability. VA recognizes theimportance of fostering a return-to-work attitude among veteransawarded IU and has implemented the use of a "motivationalletter" encouraging new IU recipients to contact VR&E forassistance in returning to work.

3.d. Social SecurityAdministration (SSA) Records

When the claims folderindicates that the veteran has been examined or awarded disabilitybenefits by SSA, any relevant records must be obtained and evaluated.The CAVC held in Murincsak v. Derwinski, 2 Vet.App. 362 (1992), thatVA’s duty to assist includes requesting both the SSA decisiongranting or denying benefits and any supporting medical records.Although VA is not obligated to follow a determination made by SSA,these records may be relevant to the issue of the level of impairmentof the veteran’s service-connected disability. However, rememberthat SSA benefits may be awarded for any disability, whereas IUbenefits must be based on service-connected disability. Therefore,careful attention must be paid to determining what disabilityresulted in a SSA benefit award and whether that disability is onefor which service connection has been granted.

4. RatingConsiderations

Rating decisions granting or denyingentitlement to IU must provide enough explanation so that theclaimant and representative can understand the reasons and bases forthe decision. As with any decision, the rating must list the evidenceconsidered, a clear explanation of the basis of the decision, and anexplanation of the effective date of entitlement.

4.a.Date of Claim

A veteran’s initial claim for IU may bereceived from any source indicating the benefit being sought,including a VAF 21-4138, Statement in Support of Claim. If theveteran files an informal claim, the regional office must send theveteran a VAF 21-8940 with instructions to complete and return itwithin one year in order to preserve date of receipt of the earliercommunication as the date of claim. If the VAF 21-8940 is receivedafter the one-year period has expired, the date of claim will be thedate of receipt of the VAF 21-8940 as provided in § 3.159(b)(1).

Ifthe veteran submits a VAF 21-8940 as the initial IU claim, receipt ofthis form will represent a claim for IU and will establish the dateof claim.

4.b. Effective Dates for IU Awards -Application of 38 CFR 3.400(o)(2)

When an IU claim is associatedwith a veteran’s worsened service-connected disability, it isconsidered a claim for increase and the effective date of entitlementmust be in accordance with § 3.400(o)(2). That section specifiesthat the effective date for an increase will be the earliest datethat it is "factually ascertainable" that an increaseoccurred, provided this date is within one year preceding receipt ofthe claim. Otherwise, the effective date is the date of receipt ofthe claim.

Claims for an increased rating are consideredclaims for IU if any of the following conditions apply:

o The IUclaim is submitted on VAF 21-8940, or

o In addition to aformal or informal claim for an increased rating, the veteran allegesthat he or she is unemployable or VA receives evidence ofunemployability, or

o In the course of developing aclaim for an increased rating, VA obtains evidence of unemployabilityand VA grants the veteran a rating that makes the veteran eligiblefor IU.

When a veteran claims entitlement to IU withoutclaiming increased disability, but increased disability is shown onVA examination or other medical evidence, the effective date of bothgrants is controlled by 38 CFR 3.400(o)(2).

4.c.Application of 38 CFR 3.400(o)

There are cases, however,where a claim for IU is not associated with a claim for increaseddisability. In these situations, the effective date is governed by §3.400(o), which provides that the effective date will be the date ofreceipt of claim or the date entitlement arose, whichever is later. Acase such as this might occur where a veteran has been unemployabledue to service-connected disability meeting the schedularrequirements for IU, but has never applied for IU. When the veteranfiles a claim for IU, and there is no associated worsened disability,it is not a claim for an increased disability. Therefore, the date ofclaim would generally be the effective date, unless evidenceindicated a date of entitlement later than the date of claim.

4.d.Effective Dates for Reasonably Raised IU Claims

Reasonablyraised claims for IU may arise in a veteran’s original claim orclaim for an increased rating. In original claims, IU must beconsidered when there is evidence of unemployability due to theclaimed service-connected disability or disabilities. In claims foran increased evaluation, the CAVC holding in Norris requires that VAmust consider a claim for IU when a veteran:

o has submitteda claim for an increased evaluation, and

o meets theminimum schedular requirements for IU, and

o there isevidence of unemployability resulting from service-connecteddisability.

In addition, if VA receives, or is in possessionof, evidence showing a worsened service-connected disability based ona report of medical examination or hospitalization, that evidence mayestablish an informal claim for increased evaluation, as provided in38 CFR 3.157. In that event, if the schedular requirements for IU aremet, evaluation of the informal claim for increase must also includean evaluation of a reasonably raised claim for IU.

Whena claim for IU is reasonably raised, VAF 21-8940 must be sent to theveteran for completion and return. Because this type of IU claimarises when there is an associated claim for increase, the effectivedate of a grant of IU is governed by § 3.400(o)(2). This means thatevidence of a factually ascertainable date of unemployability withinthe year preceding the date of claim may establish the effectivedate. In many cases, this may be the same date as that for theincrease.

If the reasonably raised IU claim is receivedat the same time as other claims from the veteran and a ratingdecision is issued on the other claims, defer the IU claim and sendthe veteran VAF 21-8940. When the form is returned, it can beevaluated along with other evidence and a decision can be maderegarding IU.

If the form is not returned within 60 daysof mailing, issue a formal rating decision based on the evidence ofrecord. If the VAF 21-8940 is returned after the rating decision ispromulgated but within one year of the date the VAF 21-8940 wasrequested, re-rate the claim using the date of mailing of the form tothe veteran as the date of claim. If IU is granted, the effectivedate of the award would be the date of receipt of the informal claim.If the form is not returned within one year of the date sent,benefits cannot be paid prior to date of receipt of the VAF21-8940.

4.e. Chapter 35 Benefits: Survivors’ andDependents’ Educational Assistance

38 U.S.C. Chapter 35and regulations at 38 CFR 3.807 establish that educational benefitsare available for dependents of a veteran who has been awarded apermanent and total service-connected disability. Although thedisabling conditions that lead to an award of IU are considered to betotal based on unemployability, they are not always permanent.Unemployability may be temporary: for example, where the veteranundergoes VR&E training and is subsequently able to engage in asubstantially gainful occupation. The VA Office of General Counselhas acknowledged that an IU award may be temporary. In VAOPGPREC5-05, it was determined that § 4.16(b) "permits the award of atotal disability rating based on temporary (i.e., non-permanent)inability to follow a substantially gainful occupation." BecauseIU is acknowledged as a benefit that is not necessarily permanent,careful consideration must be given to granting the Chapter 35educational benefit in association with the IU award. Substantialevidence must show that the veteran’s unemployability status ispermanent before the Chapter 35 grant is appropriate.

5.Continuing Requirements for IU Award

5.a. VA Form21-4140

After the initial IU award has been made, theveteran must submit a VAF 21-4140, Employment Questionnaire, on ayearly basis to certify continuing unemployability. The VAF 21-4140is required unless the veteran is 70 years of age or older, has beenin receipt of IU for a period of 20 or more consecutive years (asprovided at 38 CFR 3.951(b)), or has been granted a 100 percentschedular evaluation. The form is sent out annually to the veteranfrom the Hines Information Technology Center and must be returned tothe regional office. It requests that the veteran report anyemployment for the past 12 months or certify that no employment hasoccurred during this period. The VAF 21-4140 includes a statementthat it must be returned within 60 days or the veteran’s benefitsmay be reduced. Completion of this form has a major impact on IUbenefits in one of three ways, as described below.

VAF21-4140 returned with no change

If VAF 21-4140 is returnedin a timely manner and shows no employment, then IU benefits willcontinue uninterrupted.

VAF 21-4140 returned showingemployment

If VAF 21-4140 is returned in a timely manner andshows that the veteran has engaged in employment, VA must determineif the employment is marginal or substantially gainful employment. Ifthe employment is marginal, then IU benefits will continueuninterrupted. If the employment is substantially gainful, then VAmust consider discontinuing the IU benefit. VA regulations at 38 CFR3.343©(1) and (2) provide that actual employability must be shownby clear and convincing evidence before the benefit is discontinued.Neither vocational rehabilitation activities nor other therapeutic orrehabilitative pursuits will be considered evidence of renewedemployability unless the veteran’s medical condition shows markedimprovement. Additionally, if the evidence shows that the veteranactually is engaged in a substantially gainful occupation, IU cannotbe discontinued unless the veteran maintains the gainful occupationfor a period of 12 consecutive months.

Once this periodof sustained employment has been maintained, the veteran must beprovided with due process before the benefit is actuallydiscontinued, as stated at 38 CFR 3.105(e) and 3.501(e)(2). Thisconsists of providing the veteran with a rating which:

oProposes to discontinue the IU benefit

o Explains thereason for the discontinuance

o States the effectivedate of the discontinuance, and

o States that theveteran has 60 days to respond with evidence showing why thediscontinuance should not take place.

If the veteran responds withevidence, it must be evaluated. If the evidence is insufficient orthe veteran does not respond, then the regional office willdiscontinue the IU benefit and provide the veteran with a finalrating decision explaining the decision. The effective date of thediscontinuance will be the last day of the month following anadditional period of 60 days, which begins from the date the veteranis notified of the final rating decision.

VAF 21-4140not returned

If VAF 21-4140 is not returned within the 60days specified on the form, then the regional office must initiateaction to discontinue the IU benefit pursuant to 38 CFR 3.652(a). Dueprocess must be provided with a rating decision that proposes todiscontinue the IU benefit for failure to return the VAF 21-4140. Ifa response is not received within 60 days, then the IU benefit willbe discontinued and a rating decision will be sent to the veteranproviding notice of the discontinuance. The effective date ofdiscontinuance will be the date specified in the rating decisionwhich proposed discontinuance, as described above, or the dayfollowing the date of last payment of the IU benefit, as specified at§ 3.501(f), whichever is later. The veteran must also be notifiedthat if the form is returned within one year and shows continuedunemployability, then the IU benefit may be restored from the date ofdiscontinuance.

5.b. Income Verification Match (IVM) andField Examinations

The IVM is a method of comparing an IUrecipient’s earned income, as reported to VA by other federalagencies, with the earned income limits that define marginalemployment. If income reports show significant earned income abovethe poverty threshold, the regional office must undertake developmentto determine if the veteran is still unemployable.

Anothermethod of monitoring unemployability status among IU recipients isthrough the VA Fiduciary Activity. This service conducts fieldexaminations when it has been notified that an IU recipient might bepursuing a substantially gainful occupation. If the field examinerfinds evidence of employment or if the veteran is unwilling tocooperate with the examiner, then the examiner will forward thisinformation to the Rating Activity. A decision must then be made asto whether the IU benefit will be discontinued. This determinationmust take into account the regulatory requirements listed above,including: (1) whether there is actual employability by clear andconvincing evidence and (2) whether there has been substantiallygainful employment for 12 continuous months. If termination of the IUbenefit is appropriate, a rating decision proposing discontinuancemust be completed, with notice to the veteran that he or she has 60days in which to contest the discontinuance. If no evidence orinsufficient evidence is received within this period, then a finalrating decision must be promulgated with notice to the veteran thatthe IU benefit will be discontinued on the last day of the month inwhich the additional 60-day due process period expires. This 60-dayperiod will begin from the date of the notice of the final ratingdecision, as provided in § 3.105(e).

[john49]

Thanks Broncovet,

thats where I found the one I referenced.

John49

[Berta]

I have posted many VA training letters here. They aren't a secret.

The DAV should have them in every NSOs office.As well as the Fast Letters.

The 17 page 1997 VA Diabetes Training letter is evidence I used for my past DMII claim.

The new AO presumptive training letter should still be in our AO forum and it is available at NVLSP.

Training letters and Fast letters can be a tremendous source of information and help when supporting a claim.

They should be at the fingertips of every NSO or vet rep.

[fanaticbooks]

If anyone has links to ones I haven't put on the VBN Training Letters group, please let me know.

I am willing to add them to the list, just can't find them, whatever "them" is.

My goal is to get these things into a workable spot with the actual document so we don't have to hunt all over to look at them. And also if links disappear, we still have access.

Any help in finding them would be appreciated.

As broncovet already posted a link to the training letter topic on VBN, I won't.

fanaticbooks