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Effective 16APR2023 Bilateral Factor change!!

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brokensoldier244th

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In some cases, a bilateral factor actually makes it harder to get a higher rating, primarily due to rounding issues. If you do a bilateral factor you only get 1 number to round up. If you don't combine them it can result in 2 numbers being rounded up, resulting in a higher rating.

Effective 16APR23 38CRF 4.26 is being revised to say "except as provided in para (d) of this section when a partial disability results from disease or injury of both arms........" etc. Para D is being revised to say "Exception- in cases where the combined evaluation is lower than what could be achieved by not including one or more bilateral disabilities in the bilateral factor calculation, those bilateral disabilities will be removed from the bilateral factor calculations and combined separately, to achieve the combined evaluation most favorable to the veteran". 

In claims adjudicated prior to 16APR23 where the veteran was rated 90% instead of 100% VA will readjudicate those claims. Compensation Services and Office of Field Ops has estimated some 3000 veterans' claims will be reviewed.

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4 minutes ago, brokensoldier244th said:

In some cases, a bilateral factor actually makes it harder to get a higher rating, primarily due to rounding issues. If you do a bilateral factor you only get 1 number to round up. If you don't combine them it can result in 2 numbers being rounded up, resulting in a higher rating.

Effective 16APR23 38CRF 4.26 is being revised to say "except as provided in para (d) of this section when a partial disability results from disease or injury of both arms........" etc. Para D is being revised to say "Exception- in cases where the combined evaluation is lower than what could be achieved by not including one or more bilateral disabilities in the bilateral factor calculation, those bilateral disabilities will be removed from the bilateral factor calculations and combined separately, to achieve the combined evaluation most favorable to the veteran". 

In claims adjudicated prior to 16APR23 where the veteran was rated 90% instead of 100% VA will readjudicate those claims. Compensation Services and Office of Field Ops has estimated some 3000 veterans' claims will be reviewed.

What about static factor, what about 5,10,20 rule. What about 55 year old veteran regs.

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A rule change can't be retroactively applied to reduce a rating, so those cases above that you listed would either be grants or stay as they are. Static, 5/10/20 and over 55 only applies to RFEs and/or reductions. 

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Maybe a dumb question, but I'm going to ask it anyway: How do we know if we should be affected by this rule change? Three thousand veterans doesn't seem like a lot of veterans, and I would think there would be many thousands more with a bilateral factor who would need to have their records looked at and possibly adjudicated?

None of my decisions ever referenced a bilateral factor, so I don't even know if it was applied in my case(s) or not.

Semper Fi,

Sgt. Wilky

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This mostly affects Veterans where they would have gotten a higher rating if bilat had not been applied. You'll have to math it out. Much of the impetus for this has to to with vets that would have gotten 100% if not for the regulation saying it was required to apply bilat factor. 

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It's funny for me because I have bilaterals for arms and legs, but when those decisions for SC were finally made I simultaneously was granted 100% P&T. Doubt they would go back and do anything in my case...

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