3.10 Inferred Issues And Ancillary Benefits

January 9, 2007

M21-1-6 Rating Board Procedure

3.10 INFERRED ISSUES AND ANCILLARY BENEFITS

An issue is sometimes derived from the consideration or outcome of a related issue. The issue, decision and reasons and bases sections of the rating must explicitly address these inferred issues. Often the primary and inferred issues share the same fact-pattern, as when a psychosis is being evaluated and competency is confirmed. In such instances, the inferred issue may be incorporated in the same issue, decision, and reasons and bases numbered item as the primary issue. An example of such an issue statement might be "1. Evaluation of psychotic disorder currently evaluated as 30 percent disabling; Competency to handle disbursement of funds." Although each of the two issues would be separately justified within the same reasons and bases item, the sentences dedicated to the facts would be shared by both. If the primary and inferred issues are each itemized in separate issue, decision, and reasons and bases paragraphs, discussion of a common fact-pattern may be confined to the reasons and bases of the primary issue.

a. Special Monthly Compensation (SMC). Consider entitlement to SMC as an issue in every case where there is a severe degree of disability involving the loss or loss of use of an extremity or sensory organ or any other functional loss providing entitlement to SMC. If SMC is not granted, the reason must be indicated.

b. Aid & Attendance or Housebound. Whenever a single 100 percent evaluation is assigned in compensation or pension cases, consider entitlement to aid and attendance. If aid and attendance is not payable, consider entitlement to housebound benefits. In pension cases use rating code 19C in the rating conclusion when both aid and attendance and housebound benefits are denied.

c. Retroactive Disability Pension. If retroactive disability pension is not claimed, but a qualifying disability may exist, the claimant should be advised that retroactive benefits may be payable.

d. Dependents' Educational Assistance (DEA)--38 U.S.C. Chapter 35

(1) Whenever a schedular total evaluation is granted for a service-connected disability and there are eligible or potentially eligible claimants, one of the following statements must be included in the rating conclusion: "Basic eligibility to benefits under 38 U.S.C. chapter 35 is established from [date]," or "Basic eligibility to benefits under 38 U.S.C. chapter 35 is not established."

(2) When permanency is subsequently established, this fact will be reflected by citing the statement contained in subparagraph (1) above. The effective date will be the date of examination which established permanency, the date of new evidence requiring cancellation of future examination, or the date of review when a future examination is canceled.

(3) In death ratings, when the issue of service connection for cause of death is resolved and there are eligible or potentially eligible claimants for DEA, the following statement is required in the conclusion below the coded rating: "Basic eligibility to benefits under 38 U.S.C. chapter 35 (is) (is not) established."

(4) A surviving spouse may again establish eligibility for DIC either upon termination of the remarriage by death, divorce, or annulment, or upon the cessation of living with another person and holding herself or himself out openly to the public as that person’s spouse (38 U.S.C. 1311(e)). Eligibility for DIC under 38 U.S.C. 1311(e) does not establish the surviving spouse’s entitlement to ancillary benefits such as CHAMPVA, DEA or loan guaranty benefits. (VAOPGCPREC 13-98)

e. Psychosis--38 U.S.C. 1702. Whenever a claim for service connection for a psychosis based on wartime service is denied, determine entitlement to service connection for treatment purposes under 38 U.S.C. 1702. Code the decision "48. Active Psychosis--SC. for treatment purposes only," or "49. Active Psychosis--Not SC.; 38 U.S.C. 1702."

f. Consideration Under 38 CFR 3.324. Consideration of entitlement to a 10 percent rating under 38 CFR 3.324 must be shown as an issue in all ratings, including confirmed ratings, when a veteran has no compensable evaluation but more than one noncompensable evaluation. If denied, the reasons and bases section of the rating must adequately address this issue.

g. Extra-schedular Consideration Under 38 CFR 3.321(B)(2). Consider an extra-schedular evaluation under 38 CFR 3.321(B)(2) whenever a pension claim fails to meet the schedular requirements for permanent and total disability. Either refer the rating to the Adjudication Officer recommending approval or in the reasons and bases section of the rating indicate that the issue was considered and why pension could not be granted under that regulation. If denied, the veteran must be informed of the reason.

h. Specially Adapted Housing. Whenever a rating initially establishes disability evaluations meeting the requirements of 38 CFR 3.809 or 3.809a, dispose of the issue of entitlement to specially adapted housing in the rating conclusion by using rating code 41 or 41A and the applicable paragraph in part I, Appendix A.

i. Automobile and Adaptive Equipment. Whenever a rating initially establishes entitlement under 38 U.S.C. 3902 (38 CFR 3.808), dispose of the issue of entitlement to automobile and adaptive equipment or adaptive equipment only. In the rating conclusion enter the appropriate rating code 61 or 61A as found in part I, Appendix A.

j. Competency. Consider competency as an issue whenever a mental disorder is evaluated as 100 percent disabling, or if other evidence raises a question as to the beneficiary's mental capacity to contract or to manage his or her own affairs, including disbursements of funds, without limitation.