S Rating Criteria

[jvretiredvet]

The terms "benefit of the doubt" and "liberal interpretation" are bruited about when a veteran can't come up with a specific citation to support his/her claim.

However, it would appear to me that one of the sub-paragraphs of 38 CFR 4.16(a) http://www.benefits....PART4/S4_16.DOC defines what 40%, 60% or 70% could mean.

WRT example #2, I don't believe any "liberal interpretation" is needed. Seems pretty straight-forward to me, in light of 4.16(a).

I agree with Chuck and PR..and would add this depends on your defination of a "single" disablity rated at 100%. There are at least two ways of interpreting a 100% "single" disability:

1. It requires a rating of 100%.

2. Suffice with an example: A Vet is disabled due to a roadside bomb (a single disability). This SINGLE bomb caused multiple problems..arms, legs, PTSD, eyes, ears, etc. etc all the result of a single event...If this "single disability" caused from the roadside bomb, then these disabilities could combine to 100%. This Vet could have multiple problems from a "single disability"

I would appeal and argue that number two, above, is the "liberal interpretation" and the interpretative benefit of the doubt favors the Veteran.

[broncovet]

Chuck..

No doubt the VA interprets as they see fit, until/unless the higher courts force them to see things differently. This is the name of the game. The VA carries off your farm, and, unless you stop them with appeals, they keep going. You have to appeal and say.."hold your horses..put my farm back".

Retired

BOD is when there are two or more ways of interpreting, the Veteran is entitled to the most liberal. You are correct about 4.16a which states:

..............

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.

However, this applies to TDIU, and does not necessarily apply to other things. Of course, you can appeal this citing the above.

[broncovet]

Courier:

I think this case decides the issue:

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp00/files1/0008627.txt

where it says:

5. In accordance with the law in effect in February 1973,

the combined disability ratings for the right and left upper

extremities constitute a single service-connected disability

rated at 100 percent, and the additional disabilities of the

head and face, back and thorax, and left thigh are

independently ratable at 60 percent or more.

[Chuck75]

Using this, a common etiology (cause) could be used to limit a claim based upon A/O exposure to 100%, even though the claim may involve more than one "system", and have secondary conditions. This is not being done at present, at least to my knowledge, and the M21 contains language that directs that common etiology is not used to limit to 100%.

Chuck..

No doubt the VA interprets as they see fit, until/unless the higher courts force them to see things differently. This is the name of the game. The VA carries off your farm, and, unless you stop them with appeals, they keep going. You have to appeal and say.."hold your horses..put my farm back".

Retired

BOD is when there are two or more ways of interpreting, the Veteran is entitled to the most liberal. You are correct about 4.16a which states:

..............

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.

However, this applies to TDIU, and does not necessarily apply to other things. Of course, you can appeal this citing the above.

Edited April 23, 2012 by Chuck75

[courier71]

Broncovet,

Thanks for your response. My question is the law regarding combing upper extremity ratings to equal a 100% single rating that was in force in 1973 still in effect in 2012?

[broncovet]

Courier..

The short answer is "Yes". There is a regulation (called "liberalizing" regulations) that essentially means the Veteran is entitled to the most favorable regulation if the regulations change (this does not apply in the event of CUE..Cue is only based on the regulations at the time)

Chuck

I agree that this case seems to break new ground which is favorable to Vets:

http://www.va.gov/ve...es1/0008627.txt

Especially, this statement:

5." In accordance with the law in effect in February 1973,

the

combined disability ratings for the right and left upper

extremities constitute a single service-connected disability

rated at 100 percent

, and the additional disabilities of the

head and face, back and thorax, and left thigh are

independently ratable at 60 percent or more."

However, the real "ground breaking" case was

Bradley vs Peake,

and the BVA case I cited, above, is IMHO, the BVA interpretation of that case.