Regarding 38 CFR 3.322, the VA is supposed to determine if the preservice level of disability can be ascertained in terms of the rating schedule. If it can, and the rating was not 100%, then they are supposed to deduct the preservice level of disability from the awarded level of disability.
If the rating criteria changes while the veteran was in service, which rating criteria should be used?
- Criteria in effect at the time they joined the service
- Criteria in effect when the rating decision was made
Or could it be the criteria that is more beneficial to the veteran?
Quote
§ 3.322 Rating of disabilities aggravated by service.
(a)Aggravation of preservice disability.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.
(b)Aggravation of service-connected disability.Where a disease or injury incurred in peacetime service is aggravated during service in a period of war, or conversely, where a disease or injury incurred in service during a period of war is aggravated during peacetime service, the entire disability flowing from the disease or injury will be service connected based on the war service.
"If it's stupid but works, then it isn't stupid." - From Murphy's Laws of Combat
Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.
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Vync
Regarding 38 CFR 3.322, the VA is supposed to determine if the preservice level of disability can be ascertained in terms of the rating schedule. If it can, and the rating was not 100%, then they are supposed to deduct the preservice level of disability from the awarded level of disability.
If the rating criteria changes while the veteran was in service, which rating criteria should be used?
- Criteria in effect at the time they joined the service
- Criteria in effect when the rating decision was made
Or could it be the criteria that is more beneficial to the veteran?
"If it's stupid but works, then it isn't stupid."
- From Murphy's Laws of Combat
Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.
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GeekySquid
if this is correct, and I assume the doctor that did them is long gone, then unless you provide them those records or an insurance company paid for that treatment, then there is no record they could "
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