M21-1 Manual  /  Part V, Subpart ii, Chapter 3, Section D

Evaluating Disabilities

M21-1, Part V, Subpart ii, Chapter 3, Section D

Overview

In This Section

 This section contains the following topics:
TopicTopic Name
1 Selecting Diagnostic Codes (DCs)
2 Determining a Disability Evaluation Based on Rating Schedule Criteria
3 Extra-schedular Evaluations
4 Permanent and Total (P&T) Evaluations
5 Principles of Disability Evaluation for Specific Conditions

1. Selecting DCs


Introduction

 This topic includes information to supplement the regulatory provisions for selection of DCs to evaluate disabilities in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, including
  • choosing from multiple possible DCs
  • use of hyphenated DCs
  • using analogous codes
  • when to avoid rating by analogy
  • impact of a change in DC, and
  • handling a change in diagnosis.

Change Date

 May 29, 2025

V.ii.3.D.1.a. Choosing From Multiple Possible DCs

Diagnostic Codes (DCs) must be carefully selected and reasons for selection given if two or more are applicable. When multiple DCs apply to a given disability, consider
  • whether separate evaluations are warranted, and/or
  • which DC will result in the most advantageous outcome for the claimant.
References: For more information on

V.ii.3.D.1.b. Use of Hyphenated DCs

Hyphenated DCs may be utilized for diseases or injuries. The use of a hyphenated DC is not intended to substitute for appropriate assignment of separate evaluations for different disabilities arising from a single injury. References: For more information on the

V.ii.3.D.1.c. Using Analogous Codes

 Use analogous codes to evaluate disabilities not listed in 38 CFR Part 4, the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, based on
  • function(s) affected
  • anatomical location, and
  • symptomatology.
These factors must be discussed in the rating decision Narrative when a disability is evaluated under an analogous DC. When a claimant (or representative) requests a disability be evaluated under a specific DC and the claims processor chooses to evaluate the disability under an alternative DC, the rating decision Narrativemust explain (in sufficient detail) why the particular analogous DC was selected and why the requested DC was not appropriate to evaluate the Veteran’s disability. In cases where there is no other reasonable alternative DC for analogous purposes, other than the selected analogous DC, the claims processor should indicate this in the Narrative. References: For more information on analogous ratings, see

V.ii.3.D.1.d. When to Avoid Rating by Analogy

When a condition is specifically listed in the rating schedule, it may not be rated by analogy. When there is a diagnosis of two separate conditions, apply the DC(s) that specifically pertains to the listed conditions and determine the appropriate disability evaluations. Reference: For more information on analogous ratings, see Copeland v. McDonald, 27 Vet.App. 333 (2015).

V.ii.3.D.1.e. Impact of a Change in DC

 Service connection (SC) of a disability is not severed when the site of a disability or the DC associated with it is corrected to more accurately determine the benefit to which a Veteran may be entitled. The diagnosis or site of the existing service-connected (SC) condition may be corrected to accurately reflect the actual anatomical location of the injury or disease resulting in the Veteran’s disability, provided the redesignation does not result in severance of SC for the disability in question. However, a change in DC cannot serve to reduce a protected disability evaluation where the symptoms upon which the evaluation was based are no longer present. A change of diagnosis shown on examination or in other medical evidence must be reconciled to determine whether the underlying disability is the same condition or a progression of the condition that was previously diagnosed under a different diagnosis or whether a new disability, unrelated to the prior diagnosis, is being addressed. Example 1: A Veteran is SC for gunshot wound (GSW) of the right thigh muscle group (MG) XIII under 38 CFR 4.73, DC 5313 with a 10-percent evaluation assigned based on moderate impairment. Subsequent evidence showed that the GSW actually impacted only MG XV, which is evaluated under 38 CFR 4.73, DC 5315 and that there was never an injury to or impairment of MG XIII. In this situation, since the correction of DC serves only to correct the site of the impairment and does not serve to effectively sever SC for an otherwise properly established disability, the change in DC is warranted. Example 2: A Veteran is SC under 38 CFR 4.71a, DC 5257 for mild instability of the left knee shown on examination. The evaluation has been in place for over 20 years and is protected under 38 CFR 3.957. A claim for increase is received. The resultant examination shows no instability of the left knee but does show arthritis and pain related to the SC injury. In this situation, the 10-percent evaluation assigned under 38 CFR 4.71a, DC 5257 may not be reduced or eliminated. However, since there are separately compensable disabilities shown in the record, a separate evaluation for arthritis may be assigned under 38 CFR 4.71a, DC 5010. References: For more information on

V.ii.3.D.1.f. Handling a Change in Diagnosis

38 CFR 4.13 directs that evidence suggesting a change in the diagnosis of an SC disability must be reviewed with a goal of reconciling the discrepancy and maintaining SC for the disability, where possible. Reconciliation is necessary to ensure
  • accuracy of the diagnosis, and
  • that the proper disability has been examined and is being evaluated.
Refer to the table below for actions to take when a change in diagnosis of an SC disability is shown.
If the ...Then ...
change in diagnosis is shown on a VA examination and the examiner does not reconcile the change in diagnosis return the examination report for clarification as directed at M21-1, Part IV, Subpart i, 3.C.
change in diagnosis is shown in outpatient treatment records or other medical evidence request a medical opinion and examination (if warranted) to reconcile the change in diagnosis.
medical evidence definitively shows that the diagnosis has changed and that the prior diagnosis was clearly erroneous follow the procedures for severance of SC as directed at M21-1, Part X, Subpart ii, 5.B. Reference: For more information on special procedures for handling severance of SC for disabilities granted under 38 CFR 3.317, see M21-1, Part VIII, Subpart ii, 1.C.2.e and f.
medical evidence shows that the change in diagnosis represents a progression of the SC disability update the diagnosis to reflect the current diagnosis as well as the historical diagnosis. Example: right knee arthritis (previously diagnosed as strain)
medical evidence shows that the change in diagnosis represents a separate disability and reflects that the SC disability still exists obtain adequate evidence to evaluate the SC disability and separate the symptoms of the SC disability from the non-service-connected (NSC) disability. Reference: For more information on assigning a disability evaluation when the symptoms of an SC and NSC disability cannot be separated, see M21-1, Part V, Subpart ii, 3.D.2.c.

2. Determining a Disability Evaluation Based on Rating Schedule Criteria

Introduction

 This topic includes general principles for determining a disability evaluation based on rating schedule criteria, including
  • relationships within evaluation criteria
  • separating individual findings and pyramiding
  • evaluating symptoms of SC and NSC disabilities that cannot be separated
  • considering rating criteria that utilize “such as”
  • choosing between two levels of evaluation
  • assignment of zero-percent evaluations
  • assigning a 10-percent evaluation for multiple noncompensable SC disabilities
  • determining the retroactive applicability of a new statute or regulation
  • effect of rating schedule readjustment
  • assigning staged ratings, and
  • use of the Evaluation Builder.

Change Date

 July 29, 2026

V.ii.3.D.2.a. Relationships Within Evaluation Criteria

In determining which fact findings are required to make a legal conclusion, generally if regulatory criteria are
  • conjunctive (separated by “and”), all of the conjoined criteria must be met for the legal standard of entitlement to be met, or
  • disjunctive (separated by “or”), any one of the alternative criteria will support entitlement to the benefit.
The manner in which evaluation criteria relate to the lower and higher evaluation criteria within the same DC is also relevant when assigning evaluations.
  • Cumulative rating criteria are characterized by the lower evaluations building upon each other.
  • Successive rating criteria are a type of cumulative criteria characterized by higher evaluations for increased duration of symptoms.
  • Variable rating criteria are characterized by a lack of relationship between one set of evaluation criteria to the higher or lower evaluation criteria for the same DC. In variable rating criteria, symptoms could potentially meet the criteria required for a higher evaluation without satisfying the criteria for a lesser evaluation.
Important:
  • Conjunctive language is always subject to the reasonable doubt principles in 38 CFR 3.102 when the evidence is in relative equipoise or when there is a question regarding degree of disability.
  • 38 CFR 4.21 does not apply to conjunctive rating criteria.
  • 38 CFR 4.7 is an important consideration when evaluating a disability using variable rating criteria.
References: For more information on

V.ii.3.D.2.b. Separating Individual Findings and Pyramiding

 Do not separate individual findings when these findings, in their entirety, constitute one disability. This is
  • fundamental to the proper evaluation of a disability, and
  • consistent with the prohibition against pyramiding under 38 CFR 4.14.
Note: Pyramiding is rating the same physical manifestations of a disability under two separate DCs. Separate evaluations are warranted where none of the symptomatology for any one condition duplicates or overlaps another (Esteban v. Brown, 6 Vet.App. 259, 261-62 (1994)). Example 1: A disability of a tibia with malunion, limitation of dorsiflexion, eversion, inversion, and traumatic arthritis of the ankle would be evaluated under one DC, 38 CFR 4.71a, DC 5262, in accordance with the effect upon ankle function, with no separate evaluation for the limitation of motion or traumatic arthritis. Example 2: A shoulder disability manifest as limitation of motion of the arm is entitled to a single rating under 38 CFR 4.71a, DC 5201, regardless of how many planes of motion are affected. Example 3: Instability of the knee (38 CFR 4.71a, DC 5257) may be evaluated separately from limited motion of the knee due to arthritis (38 CFR 4.71a, DC 5003). Reference: For more information on separating individual findings for knee disabilities, see

V.ii.3.D.2.c. Evaluating Symptoms of SC and NSC Disabilities That Cannot Be Separated

 If it is not possible to separate the effects of an NSC condition from those of an SC condition, reasonable doubt, under 38 CFR 3.102, should be resolved in the Veteran’s favor with regard to whether certain signs and symptoms can be attributed to the SC condition. When evaluating an SC disability for rating purposes, if it is not possible to differentiate the Veteran’s symptoms from an SC and NSC disability, all symptoms should be deemed related to the SC disability and rated accordingly. Important:
  • Although the combined symptoms of the SC and NSC disabilities are used to support the assigned disability evaluation, the NSC disability is not considered SC.
  • The decision that the symptoms of the SC and NSC disabilities cannot be separated is a medical determination. When the record is not clear as to whether the symptoms can be separated, obtain a medical opinion for clarification.
References: For more information on

V.ii.3.D.2.d. Considering Rating Criteria That Utilize “Such As”

The use of the phrase “such symptoms as,” or a similar phrase, followed by a list of examples, provides guidance as to the variety of symptoms contemplated for each rating, and permits consideration of other symptoms, particular to each Veteran and condition. Reference: For more information on the use of the term “such symptoms as” in the schedule of ratings for mental disorders, see Mauerhan v. Principi, 16 Vet.App. 436 (2002).

V.ii.3.D.2.e. Choosing Between Two Levels of Evaluation

38 CFR 4.7 provides that where there is a question upon review of the evidence as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. Important: 38 CFR 4.7 does not preclude application of the reasonable doubt doctrine. When the decision maker concludes that the facts equally (or approximately equally) support two levels of evaluation such that each is as likely as not warranted, the higher evaluation will be awarded. Reference: For more information on the application of variable, cumulative, and successive rating criteria and when 38 CFR 4.7 applies, see M21-1, Part V, Subpart ii, 3.D.2.a.

V.ii.3.D.2.f. Assignment of Zero-Percent Evaluations

 In every instance where the schedule does not provide a zero-percent evaluation for a DC, a zero-percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. Exception: Never assign a zero-percent evaluation to a condition for which the rating schedule directs a prescribed, schedular minimum rating. Prescribed, schedular minimum ratings, in this context as well as that of M21-1, Part IV, Subpart i, 2.F.1.a and 38 CFR 3.327(b), refer exclusively to instances in which the rating schedule requires assignment of a certain compensable evaluation once the underlying disability manifests or exists in the manner described. Examples include
  • 38 CFR 4.124a, DC 8009, which requires that residuals of brain vessel hemorrhage be assigned a minimum rating of 10 percent
  • 38 CFR 4.104, DC 7019, which requires that residuals of cardiac transplantation be assigned a minimum rating of 30 percent, and
  • 38 CFR 4.116, DC 7617, which requires that postoperative removal of the uterus and both ovaries be assigned a minimum rating of 50 percent.
Reference: For more information on assignment of zero-percent evaluations, see 38 CFR 4.31.

V.ii.3.D.2.g. Assigning a 10-Percent Evaluation for Multiple Noncompensable SC Disabilities

 Under 38 CFR 3.324, a single 10-percent evaluation may be assigned when all of the following criteria are met:
  • a Veteran is suffering from two or more separate permanent noncompensable SC disabilities
  • there are no other compensable SC disabilities, and
  • the SC disabilities clearly interfere with normal employability.
Notes: Reference: For more information on when to put into issue in a rating decision and decide entitlement to a 10-percent evaluation under 38 CFR 3.324, see M21-1, Part V, Subpart ii, 3.A.2.b.

V.ii.3.D.2.h. Determining the Retroactive Applicability of a New Statute or Regulation

The provisions of a statutory or regulatory change to rating schedule criteria for evaluating disabilities are generally not retroactive unless retroactive applicability is specifically directed. When a change that revises the rating schedule’s evaluation criteria does not specify the intent for retroactive application, assume that the new criteria do not apply prior to the effective date of the corresponding regulatory change. Note: For claims pending on the date that a rating schedule provision is changed, it is usually appropriate to apply the
  • old regulation in assigning disability evaluations for periods that precede the date of the change, and
  • new regulation in evaluating a disability for any period that begins on or after the date of the change. After the effective date of the regulation change
References: For more information on

V.ii.3.D.2.i. Effect of Rating Schedule Readjustment

 When the rating schedule is readjusted, in no event shall the readjustment cause a Veteran’s disability evaluation in effect on the effective date of the readjustment to be reduced unless an improvement in the disability is shown to have occurred, even if the combined evaluation is not reduced, as indicated in VAOPGCPREC 19-1992 and 38 U.S.C. 1155. This precedent opinion also provides that when a Veteran is receiving the minimum evaluation for a condition at the time the rating schedule is revised, and the condition subsequently undergoes an exacerbation resulting in a higher evaluation, if the condition returns to the same, symptom-free status it was in at the time of the rating schedule change, a noncompensable evaluation under the new criteria will be assigned. Note: The February 3, 1988, revision of criteria for rating psychiatric disorders is considered a liberalizing law/VA issue as indicated in Sabol v. Derwinski, U.S. Vet.App. No. 90-1123 (1992), 38 U.S.C. 5110(g), 38 CFR 3.114, and VAOPGCPREC 19-1992. Reference: For more information on protection and rating schedule changes, see M21-1, Part X, Subpart ii, 1.B.4.

V.ii.3.D.2.j. Assigning Staged Ratings

 The term staged rating refers to the assignment of separate ratings for separate periods of time based on the facts found. 38 CFR 3.105(e) does not apply to a staged rating. Additionally, 38 CFR 3.105(e) is inapplicable to disabilities rated under DCs containing a note that “any change in evaluation . . . shall be subject to the provisions of 38 CFR 3.105(e)” if the reduction is part of a staged rating assigned in the grant of an original claim for such disability. Reference: For more information on assigning staged ratings, see

V.ii.3.D.2.k. Use of the Evaluation Builder

 Use of the Evaluation Builder in assigning disability evaluations in claims for compensation is mandatory. The Evaluation Builder is programmed to represent accurate policy and procedure. When an officially-issued change in regulatory, policy, or procedural guidance, or a technical or system issue, causes the Evaluation Builder to generate inaccurate results, decision makers are authorized, and must take steps, to either override the Evaluation Builder by making system entries that provide justification for the override, or to use appropriate workarounds, as directed, to ensure accurate evaluations and compliance with current guidance. To override an Evaluation Builder result, VBMS-R requires the claims processor to provide an override reason from a list of options, and free text rationale forming a justification for the override reason and outcome. Justification means that the free text rationale demonstrates
  • the chosen override reason is applicable to the specific circumstances of the claim
  • the VBMS-R warning or suggested outcome does not reflect the correct result given the facts and applicable law or policy, and
  • the claims processor’s proposed outcome is correct (the result represents an acceptable or reasonable application of the facts to the applicable law or policy).
Reference: For more information on mandatory use of VBMS-R embedded rules-based tools for assigning disability evaluations, see M21-1, Part V, Subpart iv, 1.A.5.c.


3. Extra-Schedular Consideration

Introduction

 This topic contains information about extra-schedular consideration, including
  • extra-schedular evaluations in compensation claims
  • approving extra-schedular evaluation in compensation claims
  • when to submit compensation claims for extra-schedular consideration
  • extra-schedular evaluations under 38 CFR 3.321(b)(1)
  • procedure for referring claims for extra-schedular consideration
  • extra-schedular consideration in pension claims, and
  • exhibit of
    • 38 CFR 3.321(b)(1) referral memorandum, and
    • 38 CFR 4.16(b) referral memorandum.

Change Date

September 15, 2021

V.ii.3.D.3.a. Extra-Schedular Evaluations in Compensation Claims

 Consider the issue of entitlement to an extra-schedular evaluation in compensation claims under Important:
  • If the Veteran explicitly raises the issue of extra-schedular entitlement, but the general criteria for referring the claim to Compensation Service are not met, the decision and decision notice must include an explanation of that determination.
  • In the interest of maximizing available benefit entitlement in all cases, regional offices (ROs) must explore and exhaust all possible schedular rating methods and alternatives, to include the following, before referring a claim to Compensation Service for extra-schedular consideration:
    • analogous ratings
    • assignment of the higher of two potentially applicable evaluations under 38 CFR 4.7
    • resolution of reasonable doubt in favor of the claimant under 38 CFR 4.3
    • permissible means of evaluating SC disabilities under multiple separate DC criteria without pyramiding, and/or
    • awards of
      • TDIU benefits, and/or
      • special monthly compensation (SMC).
References: For more information on

V.ii.3.D.3.b. Approving Extra-Schedular Evaluations in Compensation Claims

Only the Director of the Compensation Service (214D) may approve extra-schedular evaluations in compensation claims submitted under 38 CFR 3.321(b)(1) and 38 CFR 4.16(b).

V.ii.3.D.3.c. When to Submit Compensation Claims for Extra-Schedular Consideration

 Submit compensation claims to Compensation Service for extra-schedular consideration under 38 CFR 3.321(b)(1) or 38 CFR 4.16(b) if a(n)
  • unusual or exceptional disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, renders the schedular evaluation inadequate for an individual disability, or
  • total rating cannot be assigned solely because
Important: ROs are only required to refer claims for extra-schedular consideration when that issue, whether or not argued by the claimant, is reasonably substantiated by the evidence of record. References: For more information on

V.ii.3.D.3.d. Extra-Schedular Evaluations Under 38 CFR 3.321(b)(1)

38 CFR 3.321(b)(1) provides for referral for extra-schedular consideration based on the impact of a single disability. Refer a claim to the Compensation Service for a determination on whether an extra-schedular rating may be assigned when both of the following criteria are met:
  • the established schedular criteria are inadequate to describe the severity and symptoms of the claimant’s disability, and
  • there are other indications of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization.
Notes: References: For more information on
  • when to address the issue of entitlement to an extra-schedular evaluation under 38 CFR 3.321(b)(1) in a rating decision, see VAOPGCPREC 6-1996, and
  • the relevance of the use of assistive devices in extra-schedular consideration, see Spellers v. Wilkie, 30 Vet.App. 211 (2008).

V.ii.3.D.3.e. Procedure for Referring Claims for Extra-Schedular Consideration

 Follow the steps in the table below when referring claims for extra-schedular consideration under either 38 CFR 3.321(b)(1) or 38 CFR 4.16(b).
StepAction
1 Complete the appropriate memorandum as shown in M21-1, Part V, Subpart ii, 3.D.3.g or h. Note: When referring a claim to Compensation Service for consideration of both38 CFR 3.321(b)(1) or 38 CFR 4.16(b), the request may be submitted under the same memo as long as the memo fully discusses both extra-schedular provisions and provides recommendations for both.
2 Obtain the required signatures on VA Form 21-0961, Rating Decision/Administrative Decision/Formal Finding/Statement of the Case (SOC)/Supplemental Statement of the Case (SSOC) (Electronic Signatures).
3 Upload the memorandum and all other relevant documents to the Veteran’s electronic claims folder.
4 Use the table below to refer the claim to Compensation Service for extra-schedular consideration.
If the claim is …Then …
processed in the National Work Queue (NWQ) environment assign the Compensation Service Review – Extraschedular special issue indicator to the relevant contention(s), and Compensation Service Case Review tracked item in accordance with the NWQ Phase 1 &2 Playbook to ensure proper routing to Compensation Service.
not processed in the NWQ environment
  • assign the
    • Compensation Service Review – Extraschedular special issue indicator to the relevant contention(s), and
    • Compensation Service Case Review tracked item, and
  • manually broker the end product (EP) to Compensation Service (Washington DC).
Reference: For more information on manually brokering EPs, see the VBMS Core User Guide.
Reference: For more information on assigning special issue indicators and tracked items, see

V.ii.3.D.3.f. Extra-Schedular Consideration in Pension Claims

In pension claims, consider the issue of entitlement to an extra-schedular evaluation under 38 CFR 3.321(b)(2) whenever a Veteran fails to meet the schedular requirements for permanent and total (P&T) disability. If approval is recommended, forward the rating decision and claims folder to the Veterans Service Center Manager, Pension Management Center Manager, or designee for signature.

V.ii.3.D.3.g. Exhibit 1: 38 CFR 3.321(b)(1) Referral Memorandum

 This exhibit contains a sample of the memorandum completed for 38 CFR 3.321(b)(1) referrals.
DEPARTMENT OF VETERANS AFFAIRS[RO Name RO Address][Date] Director In Rely Refer To: Compensation Service (214D) [RO #] Department of Veterans Affairs [File Number] Central Office [Veteran’s Name] 810 Vermont Ave. NW Washington, DC 20420 SUBJECT: Administrative Review for Entitlement to Increased Evaluation in Accordance with 38 CFR § 3.321(b)(1)BACKGROUND INFORMATION: [List service information, such as branch, dates, and place(s) of service.]STATEMENT OF ISSUE: [State specific review requested, including any relevant time period and whether the issue is part of a Board of Veterans’ Appeals (BVA) remand.]Example: Review for entitlement to an increased evaluation on an extra-schedular basis for bilateral hearing loss. EVIDENCE: [List the evidence used for this review.]Example:
  • Rating decision dated August 1, 2008
  • BVA decision/remand dated November 1, 2015
  • VA examinations dated June 7, 2008, July 10, 2010, September 12, 2015, and June 20, 2016
DISCUSSION: [Discuss medical evidence in detail for each SC disability related to the request for all pertinent time periods, to include medical evidence found within the file and the BVA remand.]Example: Service connection has been established for bilateral hearing loss. This condition has been evaluated at zero percent disabling since January 6, 2008. The Veteran is requesting an increased evaluation for this condition. BVA remanded this issue on November 1, 2015, and directed that the case be referred for consideration of entitlement to an increased evaluation on an extra-schedular basis from January 6, 2008, to present. VA examinations dated June 7, 2008, July 10, 2010, and September 12, 2015, document that the Veteran’s hearing loss has been appropriately evaluated at zero percent disabling for the time period of this review. Speech recognition scores were 96% for the right ear and 94% for the left ear. On June 20, 2016, another examination was performed. Testing revealed a slight deterioration in the bilateral hearing loss; however this change is not sufficient to warrant an increased evaluation on a schedular basis. Speech recognition scores remained at previous levels. The examiner stated that the Veteran’s hearing loss would not preclude employment. The examiner further stated that the Veteran would have some difficulty working in situations with a lot of background noise.Evidence shows that the Veteran attended college for two years and worked as an engineer following separation from service. The Veteran retired from this position in January of 2012, after 23 years. Evidence does not show that the bilateral hearing loss interfered with employment. Extra-schedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. No unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. The evidentiary record does not demonstrate that the symptomatology consistently associated with the service-connected bilateral hearing loss supports an increased evaluation on a schedular or extra-schedular basis for any time period.RECOMMENDATION:[Provide a recommendation, to include an effective date, if applicable.]Example: Deny an increased evaluation on an extra-schedular basis for bilateral hearing loss.SIGNATURES: [Document signatures on VA Form 21-0961 by following procedures in M21-1, Part X, Subpart v, 1.C.2.i.]

V.ii.3.D.3.h. Exhibit 2: 38 CFR 4.16(b) Referral Memorandum

 This exhibit contains a sample of the memorandum completed for 38 CFR 4.16(b) referrals.
DEPARTMENT OF VETERANS AFFAIRS[RO NameRO Address] [Date] Director In Rely Refer To: Compensation Service (214D) [RO #] Department of Veterans Affairs [File Number] Central Office [Veteran’s Name] 810 Vermont Ave. NW Washington, DC 20420 SUBJECT: Administrative Review for Entitlement to Total Disability Rating Based on Individual Unemployability (TDIU) in Accordance with 38 CFR 4.16(b)BACKGROUND INFORMATION: [List service information, such as branch, dates, and place(s) of service.] STATEMENT OF ISSUE: [State specific review requested, including any relevant time period and whether the issue is part of a BVA remand.]Example: Review for entitlement to TDIU benefits on an extra-schedular basis for the period June 20, 2016, to May 1, 2017. EVIDENCE: [List the evidence used for this review]Example:
  • Rating decision dated April 15, 2016
  • BVA remand dated June 1, 2017
  • VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received January 12, 2016
  • Transcript of hearing, dated May 19, 2017
  • VA examinations dated December 2012, March 2014, and May 2016
  • Social Security Administration (SSA) disability transmittal sheet, dated January 30, 2016
DISCUSSION: [Discuss medical evidence in detail for each SC disability related to the request for all pertinent time periods, to include medical evidence found within the file and the BVA remand.]Example: Service connection has been established for three conditions. Posttraumatic stress disorder (PTSD) was evaluated at 30 percent disabling effective January 2, 2013, and increased to 50 percent disabling effective January 3, 2016; arthritis of the right knee has been evaluated at 10 percent disabling since June 5, 2010, and bilateral hearing loss has been evaluated at zero percent disabling since June 5, 2010. The combined evaluation for compensation was 10 percent effective June 5, 2010; 40 percent effective January 2, 2013, and 60 percent effective January 3, 2016. BVA remanded this issue on January 1, 2017, and directed that the case be referred for entitlement to TDIU benefits on an extra-schedular basis from January 2, 2013, to present date. Evidence from SSA shows that the Veteran was found to be entitled to SSA disability benefits in June of 2013. The primary condition utilized to make that decision was disorders of the spine, and the secondary condition was disorders of the knee. Evidence shows that the Veteran attended college for four years and worked as an automobile salesperson following separation from service. The Veteran retired from this position in January of 2012, after 26 years. Evidence does not show that the service-connected conditions interfered with employment. VA psychiatric examinations performed in December of 2012, March of 2014, and May of 2016, demonstrate that the Veteran’s PTSD has deteriorated since 2013. The Veteran has never been hospitalized for PTSD, and records show no therapy sessions prior to January of 2016. The Veteran took prescription medication prescribed by a family doctor until treatment with a psychiatrist began in December of 2015. Evidence shows no hallucinations, delusions, or suicidal or homicidal ideations at any time. The Veteran’s depression and anxiety (symptoms of PTSD) increased in severity in late 2015 with occasional panic attacks and difficulty getting along with family members and friends. The Veteran started to isolate more often and had difficulty sleeping most nights. Evidence does not include any medical opinions indicating that the PTSD interfered with prior employment or would prevent employment at any time.

A VA musculoskeletal examination performed in March of 2014, revealed full motion of the right knee with pain. X-ray evidence revealed arthritis. No instability of the knee was found. The Veteran reported pain with extended periods of walking and standing, and use of over-the-counter pain medication as needed for knee pain, but no use a cane or other ambulatory aids. No surgery has been performed on the right knee.

A VA examination performed in March of 2014 revealed a mild bilateral hearing loss. The Veteran was able to hear well during the examination. Speech discrimination was 98% in each ear. The examiner stated that the hearing loss would not affect employment.

It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. None of the available evidence supports the Veteran’s contention that any service-connected disabilities or a combination of the effects of the disabilities prevents all types of gainful activity.

RECOMMENDATION:[Provide a recommendation, to include an effective date, if applicable.]Example: Grant entitlement to TDIU on an extra-schedular basis effective June 20, 2017.SIGNATURES: [Document signatures on VA Form 21-0961 by following procedures in M21-1, Part X, Subpart v, 1.C.2.i.]

4. P&T Evaluations

Introduction

 This topic contains information on the rating determination for DEA under 38 U.S.C. Chapter 35, including
  • definition of a
    • total disability, and
    • permanent disability
  • requirement for permanence
  • evidentiary threshold for establishing permanence
  • establishing permanence for chronic, progressive disabilities
  • date of P&T disability
    • when claimed or raised as a subordinate issue, and
    • upon cancellation or dismissal of review examination control
  • P&T reasons for decision
  • addressing the P&T status of disabilities normally requiring a review examination, and
  • granting P&T without Dependents' Educational Assistant (DEA).

Change Date

 July 21, 2022

V.ii.3.D.4.a. Definition: Total Disability

Total disability means
  • schedular or extraschedular evaluations of 100 percent under, or by analogy to, any DC in 38 CFR Part 4
  • a combined evaluation of 100 percent, or
  • TDIU.
Reference: For more information on a total disability evaluation for the loss of paired organs or extremities under 38 U.S.C. 1160, see Kimberlin v. Brown, 5 Vet.App. 174 (1993).

V.ii.3.D.4.b. Definition: Permanent Disability

Permanent disability means disabling manifestations reasonably certain to continue throughout the lifetime of the individual. Reference: For more information on permanent disability, see

V.ii.3.D.4.c. Requirement for Permanence

The mere existence of a total disability evaluation is not sufficient to establish a P&T evaluation. The evidence must establish permanence of the total evaluation, as discussed in M21-1, Part V, Subpart ii, 3.D.4.d. Total evaluations assigned under the following provisions are temporary:

  • prestabilization (38 CFR 4.28)
  • extended VA hospitalization (38 CFR 4.29)
  • convalescence (38 CFR 4.30), and
  • any DC that provides for a limited period of total disability for convalescence such as joint replacements or cardiac procedures.

Exceptions:

  • Veterans who are considered P&T disabled prior to the assignment of a 100-percent evaluation under a DC with a limited duration and future examination will be considered permanently disabled during the total evaluation. The status of permanency is reconsidered following completion of the examination. Example: A Veteran who is considered permanently and totally disabled because of a heart disorder based on metabolic equivalents (METs) undergoes cardiac transplantation surgery. The Veteran would continue to be considered P&T disabled for the duration of the one-year convalescent period under 38 CFR 4.104, DC 7019.
  • A temporary total evaluation on the date of death will establish a P&T disability. Total disability did persist from the date assigned until the end of the person’s life.

V.ii.3.D.4.d. Evidentiary Threshold for Establishing Permanence

 Permanence of a total disability evaluation may be established when the evidence of record clearly establishes that a disability is expected to continue at its current level of severity. However, clear and specific evidence is not required to establish permanence. When the evidence of record does not clearly or specifically show that the total disability will continue but alsodoes not show that a reexamination to ascertain improvement is warranted pursuant to 38 CFR 3.327(b)(2), concede permanence of the evaluation based on a reasonable certainty that improvement is not likely. The following fact patterns demonstrate scenarios in which P&T disability is established based on the preponderance of the evidence of record.
  • Evidence at the time of evaluation affirmatively shows that the total disability will continue for the remainder of the person’s life.
  • Evidence at the time of evaluation does not specifically support that the total disability will continue for the remainder of the person’s life but does not show that the condition is likely to improve pursuant to 38 CFR 3.327(b)(2). In such cases, a future examination control is inappropriate so the total disability rating is static; in the absence of re-evaluation, total disability is likely to continue for the remainder of the person’s life.
  • At or before the time of maturation of a future examination diary pertinent to the continuation of total disability, the future examination control is canceled because
  • Total disability has been in effect for 20 or more years per 38 CFR 3.951. In such cases, the total disability is protected and is therefore static and will continue for the remainder of the person’s life.
  • A qualifying individual with total disability dies. In such cases, the total disability is permanent because it persisted until the end of the person’s life.
Notes:
  • The evidentiary threshold provided in 38 U.S.C. 3501(a)(8) to establish permanence is that there must be a reasonable certainty that the level of impairment will continue throughout the life of the disabled person. This threshold means that there is more than an approximate balance of evidence indicating that the level of impairment will continue indefinitely.
  • For historical purposes, a 100-percent evaluation under the 1925 rating schedule also meets the criteria of a “total disability, permanent in nature,” for DEA, per 38 CFR 3.952.
Reference: For more information on the definition of static disability, see M21-1, Part IV, Subpart ii, 2.B.2.b.

V.ii.3.D.4.e. Establishing Permanence for Chronic, Progressive Disabilities

 When evidence indicates that cancer or other similarly chronic and progressive disabilities are not expected to improve, concede permanence for the disability evaluation. Examples of indicators suggesting the likelihood that the disability status is permanent include but are not limited to
  • a prescription for palliative treatment only for a cancer diagnosis
  • a prescription for hospice care, or
  • an indicator in medical evidence that the condition is considered terminal.

V.ii.3.D.4.f. Date of P&T Disability When Claimed or Raised as a Subordinate Issue

 Basic eligibility based on a P&T SC disability is only established when all criteria (i.e., SC, total disability, and permanence of disability) are met. Therefore, the date of P&T disability is the later of
  • the date of claim, or
  • the date that the final criterion is factually established.
Notes:
  • If medical evidence reviewed in connection with a claim portrays an increase in SC disability, warranting a finding of permanence, establish the P&T evaluation and apply the effective date provisions of whichever of the following is more applicable/appropriate:
  • When results of a VA-initiated review/future examination portray permanence of an individual or combined total disability evaluation, establish basic eligibility to a P&T evaluation as of the date the examination was performed.
  • Attribute examination or other findings dated after the date of claim back to the date of claim unless there is specific evidence there was a change to total disability or to permanece of disability between the date of claim and the date of the evidence.
Example: A VA examination finding that contains an opinion on permanence of disability would be attributed to the date of claim unless there was specific evidence dated on or after the date of claim, and prior to the VA examination date, indicating that the total disability was likely to improve, in which case the date of permanence would be the date of examination. References: For more information on

V.ii.3.D.4.g. Date of P&T Disability Upon Cancellation or Dismissal of Review Examination Control

 Use the table below to determine the date of P&T disability when
  • there is total disability but no indication of permanence based on an established future or review examination control, and
  • a P&T determination is subsequently necessitated by one of the following actions:
    • cancellation of the future examination control prior to maturation, or
    • determination that a review examination should not be scheduled at the time the future examination control matures.
When the action is based on ...Then ...
a determination that the examination control was initially set up in errorExample: In violation of 38 CFR 3.327(b)(2), a future examination control is set for a condition, like amytrophic lateral sclerosis (ALS), that can only be rated at 100 percent and is, by its nature, permanent. set the date of P&T disability as if the future examination control were never established. Explanation: The examination control was erroneous; therefore, the condition was static at the time of the rating decision establishing SC.
a difference in judgment rather than a specific error in the initial future examination control Example: The rating activity determines, prior to scheduling, that a review examination should not be scheduled as planned because the conclusion of likely future improvement used to set the future examination control was not well justified by the facts. use the date of reviewfor the date of P&T disability. Explanation: This is essentially a new determination of permanency on the date of review caused by reexamination of the facts.
new evidence that changes the prior assessment that the total disability is likely to improve, as indicated by a future examination control use the date that the new evidence is received for the date of P&T disability. Exception: When the new evidence portraying disability permanence is dated within one year prior to the date of the current review, apply the effective date provisions of 38 CFR 3.400(o)(2).

References: For more information on effective dates

V.ii.3.D.4.h. P&T Reasons for Decision

 Rating decisions establishing P&T status must provide
  • the basis for the decision, and
  • a discussion of the evidence supporting the decision.

V.ii.3.D.4.i. Addressing the P&T Status of Malignancies

 VBMS-R’s system-generated language for evaluating totally disabling SC malignancies or other disabilities normally requiring a review examination usually includes reference to the scheduling of a mandatory review examination intended to determine recurrence or residual disability. When, however, P&T status of the SC disability has been conceded in light of the guidance in M21-1, Part V, Subpart ii, 3.D.4.e, edit the rating decision narrative by replacing the system-generated text displayed in the left column of the table below with the text displayed in the right column.
VBMS-R System-Generated TextReplacement Text
A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR §3.105(e). If there has been no local recurrence or metastasis, you will be rated on residuals.The medical evidence shows that permanence of this disability has been established. Consequently, no future VA examination will be requested.
References: For more information on

V.ii.3.D.4.j. Granting P&T without DEA

 When a P&T evaluation is established, if eligibility for DEA is not being established as an ancillary benefit in the same rating decision (for example, when eligibility for DEA has been granted in a prior decision or is not warranted for a grant of benefits under 38 U.S.C. 1151), modify the rating narrative text to provide a discussion of only the permanence determination unless a decision is specifically required for DEA.

    5. Principles of Disability Evaluation for Specific Conditions


    Introduction

    		 This topic contains information about evaluating specific conditions or circumstances, including
    • evaluating malignant neoplasms and associated impairments
    • examples of evaluating diagnosed disabilities due to malignant neoplasms
    • evaluating an SC disability eliminated by NSC amputation, and
    • considering recurrent or refractory symptoms.

    Change Date

    		 September 15, 2021

    V.ii.3.D.5.a. Evaluating Malignant Neoplasms and Associated Impairments

    		Use the table below to determine whether a symptom or condition associated with an active malignant neoplasm may be separately evaluated during the period in which a 100-percent evaluation is warranted for the active malignant neoplasm.
    If the condition is a ...Then ...
    purely symptomatic complaint arising from the malignant neoplasm do not assign a separate evaluation.
    symptom arising from treatment for the malignant neoplasm do not assign a separate evaluation.
    diagnosed disability deemed to be caused by or related to the malignant neoplasm
    • apply 38 CFR 4.14 to determine whether the symptoms of the diagnosed disability are considered in the 100-percent evaluation for the malignant neoplasm
    • review the evaluation criteria for both conditions and other applicable provisions to determine whether separate evaluations are allowable, and
    • if the pyramiding rule in 38 CFR 4.14 has not been violated and separate evaluations are otherwise allowable, assign a separate evaluation.
    Note: When the DC for the active malignancy is directive as to how to evaluate residuals of the cancer, conditions or symptoms that
    • would be rated as residuals should not be assigned a separate evaluation during the pendency of the 100-percent evaluation for the active malignancy, and
    • would not be rated as residuals may be granted separately and concurrently with the 100-percent evaluation.
    metastatic malignant neoplasm affecting a different body system than is affected by the primary SC neoplasm assign a separate evaluation. Note: For the purpose of determining entitlement to SMC at the statutory housebound rate under 38 CFR 3.350(i)(1), carcinoma that has metastasized and involves two different body systems would generally be considered separate and distinct. The fact that there is an etiological relationship does not preclude considering the impact and effects as separate and distinct.
    metastatic malignant neoplasm affecting the same body system as is affected by the primary SC neoplasm do not assign a separate evaluation. Note: This guidance is applicable when language within a particular DC refers to malignant neoplasms in plural.
    Note: If doubt arises as to the medical cause or association of any symptoms or diagnosis, a medical opinion should be requested for clarification. References: For more information on
    • assignment of separate evaluations for individual findings, see M21-1, Part V, Subpart ii, 3.D.2.b, and
    • entitlement to SMC based on housebound status, see M21-1, Part VIII, Subpart iv, 4.A.10.

    V.ii.3.D.5.b. Examples of Evaluating Diagnosed Disabilities Due to Malignant Neoplasms

    		Example 1: SC for anxiety disorder claimed and diagnosed as secondary to active lung cancer may be granted and separately evaluated. Example 2: A Veteran is SC with a 100-percent evaluation assigned for active renal cancer and undergoes a nephrectomy as a part of the treatment for the renal cancer. 38 CFR 4.115b, DC 7528 directs that renal cancer is evaluated as active malignancy and its residuals are evaluated based on either voiding dysfunction or renal dysfunction. Since a nephrectomy is evaluated either with the minimum compensable evaluation or as renal dysfunction under 38 CFR 4.115b, DC 7500, the rating schedule recognizes that renal dysfunction is within the predominant symptomatology of both disabilities. Since both criteria contemplate renal dysfunction, the nephrectomy cannot be separately evaluated. Example 3: A Veteran is SC with a 100-percent evaluation assigned for active renal cancer. The Veteran is diagnosed with recurrent pyelonephritis which is characterized by symptoms of recurrent urinary tract infection. The pyelonephritis is identified as a complication of the renal cancer. 38 CFR 4.115b, DC 7528 directs that renal cancer is evaluated as active malignancy and its residuals are evaluated based on either voiding dysfunction or renal dysfunction. Since the pyelonephritis is characterized by recurrent urinary tract infection, which is not considered within the criteria for evaluating malignant neoplasms of the genitourinary system, a separate evaluation may be assigned under 38 CFR 4.115b, DC 7504 utilizing the urinary tract infection symptoms. Example 4: A Veteran is SC with a 100-percent evaluation assigned under 38 CFR 4.114, DC 7343 for active colon cancer. The Veteran sustained a nerve injury during surgery for the colon cancer resulting in impairment of anal sphincter control with incontinence. Since the symptoms of impairment of sphincter control with incontinence are due to a separately diagnosed disability (the nerve injury), pyramiding rules are not violated, and 38 CFR 4.114 does not prohibit separate evaluations for these coexisting digestive system disabilities, a separate evaluation may be assigned for the nerve injury with impairment of sphincter control under 38 CFR 4.114, DC 7332. Example 5: A Veteran is SC with a 100-percent evaluation assigned under 38 CFR 4.115b, DC 7528. A VA examination revealed a diagnosis of erectile dysfunction due to the prostate cancer. Since 38 CFR 4.115b, DC 7528 directs that prostate cancer is evaluated based on residuals consisting of voiding dysfunction or urinary tract infection, SC for the erectile dysfunction should be established concurrently with the 100-percent evaluation.

    V.ii.3.D.5.c. Evaluating an SC Disability Eliminated by NSC Amputation

    		 Where an NSC cause necessitates amputation of an extremity resulting in elimination of an SC disability distal to the site of the amputation, do not sever SC for or reduce the evaluation of the SC disability.

    V.ii.3.D.5.d. Considering Recurrent or Refractory Symptoms

    		 Many evaluation criteria require consideration of the frequency of occurrence of symptoms. Two descriptions used throughout the rating schedule for frequency of occurrence are refractory and recurrent.
    • Recurrent describes signs, symptoms, or a disease that returns after a period of remission (or a period of time during which the symptoms could not be detected).
    • Refractory describes a disease, condition, or symptoms that do not respond or are resistant to treatment.
    Example: The evaluation criteria for human immunodeficiency virus (HIV)-related illness at 38 CFR 4.88b, DC 6351 utilizes recurrent symptoms for the 30-percent evaluation and refractory symptoms for the 60-percent evaluation.

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    Source: VA M21-1 Adjudication Procedures Manual, M21-1, Part V, Subpart ii, Chapter 3, Section D (U.S. government work, reproduced for reference). Browse all sections →