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Updated Feb 12, 2024

In This Section
This section contains the following topics:
Topic
Topic Name
1
2
3

1.  Types of Issues and Claims

Introduction
This topic contains information about the various types of issues and claims, including

Change Date

 February 12, 2024

V.ii.3.A.1.a.  Recognizing Issues and Claims When Preparing a Rating Decision
When preparing a rating decision, the decision maker must recognize, develop, clarify, and/or decide all issues and claims, whether they are
  • expressly claimed
  • within scope of an expressly claimed issue, such as
    • complications/residuals of the claimed condition, or
    • unclaimed subordinate issues and ancillary benefits, or
  • compensation entitlement issues that arise based on the Department of Veterans Affairs’ (VA’s) review of evidence, such as
    • reductions of service-connected (SC) disability evaluation
    • clear and unmistakable errors (CUEs)
    • entitlement under the Nehmer stipulation, or
    • competency reviews.
References:  For more information on

V.ii.3.A.1.b.  Definition and Example:  Expressly Claimed Issue 
An expressly claimed issue is defined as when a disability and the benefit sought are both explicitly identified on a standardized VA form.
References:  For more information on

V.ii.3.A.1.c.  Definition and Example: Issues Within Scope
An issue within scope is one that is not explicitly identified by the claimant on a one of the forms listed in M21-1, Part II, Subpart iii, 1.A.1.a, but is identified upon review of the claims folder during the decision-making process for an expressly claimed issue.  An issue within scope arises based on a sympathetic reading of the claimant’s statements and/or evidence of record.  It encompasses such things as entitlement to
  • any ancillary benefits that arise as a result of the adjudication decision, and
  • additional benefits for complications/residuals of an expressly claimed condition.
Notes:
  • VA does not expect, nor does the law require, claimants to articulate with medical precision the disabilities for which compensation is sought.  Veterans regularly claim disability compensation for a specific clinical entity and ultimately establish service connection (SC) for a similar, but clinically distinct, condition.
  • When an individual expressly claims a specific disability and is later diagnosed with a different but potentially-related condition, if a sympathetic reading of the claim shows that the diagnosed condition is encompassed by the claim, VA must address the claim as including the diagnosed condition, as discussed in Grimes v. McDonough, 34 Vet.App. 84 (2021).
Example 1:  VA may, in developing a Veteran’s claim for SC for sinusitis, provide the Veteran with an examination that renders a diagnosis of a similar condition, such as allergic rhinitis, rather than sinusitis.
Result:  In the event that the examination is otherwise sufficient for rating purposes and the condition is associated with service, the decision maker awards SC for allergic rhinitis as within the scope of the claim for sinusitis.
Example 2:  The Veteran’s VA examination shows that their SC posttraumatic stress disorder (PTSD) warrants an increase to a 70-percent evaluation.  In addition, the Veteran reported being fired from several jobs due to their inability to deal with stress, and the VA examiner identified the Veteran’s stress management problem as a symptom of PTSD.
Result:  The decision maker addresses the issue of individual unemployability (IU) in the rating decision.
Example 3:  The Veteran submits a claim for SC for right knee strain.  The evidence of record, including the resulting examination, shows that SC for the knee strain is warranted.  The examination also reveals a knee scar that resulted from a post-service arthroscopy procedure.  The examination indicates the arthroscopy was associated with the SC right knee strain.  The examination also shows that the scar is not painful or unstable and is less than 6 square inches.
Result:  In the event that the examination is otherwise sufficient for rating purposes, the decision maker awards SC for the knee condition and separate SC for the noncompensable knee scar as within the scope of the claim for SC for right knee strain.
Example 4:  The Veteran submits a claim for SC for hearing loss, earaches, and sinusitis.  Later, the Veteran submits a lay statement reporting that everyday sounds cause discomfort.  Private medical records show a diagnosis of hyperacusis.  Hyperacusis was also diagnosed during the VA audiology examination.
Result:  In view of the evidence, the express claim for hearing loss and earaches must be sympathetically read as encompassing the diagnosed disability hyperacusis.  Decreased sound tolerance (hyperacusis) reasonably falls within the claim for an audiological condition manifested by hearing deficits and ear pain.  If the examination is otherwise sufficient for rating purposes, make a decision on SC for hyperacusis.  Otherwise defer for a new and/or adequate examination or other required development.
References:  For more information on

V.ii.3.A.1.d.  Definition and Example: Unclaimed Subordinate Issues
Unclaimed subordinate issues are issues derived from the consideration or outcome of related issues.  Often, the primary and subordinate issues share the same fact pattern.
Example:  SC for treatment purposes under 38 U.S.C. 1702 based on a denial of SC for compensation purposes is considered a subordinate issue
  • for a psychosis based on wartime service, or
  • for any mental disorder based on Gulf War service, and
  • when entitlement is shown under 38 U.S.C. 1702.
References:  For more information on

V.ii.3.A.1.e.  Definition and Example: Ancillary Benefits
Ancillary benefits are secondary benefits that are considered when evaluating claims for
  • compensation
  • pension, or
  • Dependency and Indemnity Compensation (DIC).
Note:  Eligibility for ancillary benefits is derived from a Veteran’s entitlement to disability benefits or the circumstances of the Veteran’s death.
Example:  The Veteran is granted a 100-percent evaluation for amyotrophic lateral sclerosis (ALS) and complications.  VA examination shows that the Veteran requires daily assistance with activities of daily living.
Result:  The rating activity addresses the issues of aid and attendance (A&A), Dependents’ Educational Assistance (DEA), specially adapted housing (SAH), and automobile allowance and adaptive equipment in the rating decision.
Reference:  For more information on subordinate issues and ancillary benefits, see M21-1, Part V, Subpart ii, 3.A.2.

V.ii.3.A.1.f.  Definition and Example:  Compensation Entitlement Issues 
Compensation entitlement issues arise upon VA’s review of evidence and do not require a claim from the beneficiary in order to be brought to issue.  This includes issues such as
  • reductions of SC disability evaluations
  • CUEs
  • entitlement under the Nehmer stipulation, or
  • competency reviews.
Situation:  A Veteran, who is SC for bilateral knee arthritis, claims an increased disability evaluation for the left knee.  The examination includes a full evaluation of both knees.  The Veteran’s SC right knee, which has been evaluated as 30-percent disabling for three years, shows improvement consistent with 38 CFR 3.344 and M21-1, Part X, Subpart ii, 4.A.1.b.  The treatment reports are consistent with the examination findings.
Result:  The rating decides the expressly claimed left knee evaluation and proposes a reduced evaluation for the right knee, as the overall combined evaluation will be reduced.
Rationale:  The examination report and treatment records both show the condition has improved and warrants reduction.  The evaluation has been in effect for less than five years and may be reduced on one examination.  As the combined evaluation is affected, the regional office (RO) must apply the provisions of 38 CFR 3.105(e) and propose the reduction.
Situation:  A Veteran files a claim for an increased disability evaluation for SC lumbar strain.  While processing the claim, the rating activity notices an earlier effective date under the Nehmer stipulation is warranted for the SC ischemic heart disease based on treatment records that were in file at the time a prior claim was decided.
Result:  The rating decision decides both the expressly claimed lumbar spine issue and awards entitlement to an earlier effective date under the Nehmer stipulation.
Rationale:  Claimants do not have to file claims for consideration of an earlier effective date under the Nehmer stipulation.  As records support entitlement, the decision maker should award the earlier effective date under 38 CFR 3.816.
References:  For more information on

V.ii.3.A.1.g.  Considering Intent of New Claims
Avoid confusing the “sympathetic reading” doctrine and within-scope analysis discussed in M21-1, Part V, Subpart ii, 3.A.1.c with a reading that
  • misconstrues or makes generalized assumptions about the Veteran’s intent in contending a specific disability, and/or
  • narrows the scope of potential for the claim’s consideration.
Unless adjudicative judgment and/or review of available evidence suggests that an alternative reading would better serve the Veteran and result in maximizing the potential for benefit entitlement, decide each expressly claimed issue on its factual merits.
Example 1:  A Veteran who received an Afghanistan Campaign Medal was previously denied SC for depression on the basis that no mental health symptoms became manifest during service.  The decision notice communicating the denial was dated August 17, 2016.  On January 5, 2018, VA receives a claim for SC for PTSD.
Result:   The RO must decide the PTSD claim on its individual merits, without regard to the previous denial of SC for depression, in spite of the contentions’ symptomatic similarities, as
  • the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), does not require that all mental health claims be treated as one
  • 38 CFR 3.304(f) provides additional means by which SC for PTSD can be established, and
  • receipt of the Afghanistan Campaign Medal would generally satisfy the requirement for a stressor involving service in an area of potential hostile military or terrorist activity.
Example 2:  A Veteran who is currently SC for bronchial asthma, evaluated as 30-percent disabling, files a claim for SC for obstructive sleep apnea requiring the use of a continuous positive airway pressure (CPAP) device.
Result:  The RO must decide the sleep apnea claim on its individual merits and not generally assume that the Veteran, in contending a separate respiratory condition, intended to seek an increased evaluation for SC asthma.  Although 38 CFR 4.96(a) would prohibit the assignment of separate compensable evaluations for both asthma and sleep apnea if SC for the latter were ultimately awarded, 38 CFR 4.97, diagnostic code (DC) 6847, may permit assignment of a greater collective evaluation in light of the required CPAP use.
References:  For more information on

V.ii.3.A.1.h.  Clarifying Issues and Claims
Whenever the disability claimed is not clearly identified, ensure that the claim clarification procedures outlined in M21-1, Part III, Subpart i, 2.D.1.c have been followed and documented prior to issuing a rating decision.

2.  Considering Issues Within Scope of a Claim

Introduction
This topic contains information about considering issues within scope of a claim, including

Change Date

 February 12, 2024

V.ii.3.A.2.a.  Types of Ancillary Benefits

 Some types of ancillary benefits are Reference:  For more information on ancillary benefits, see

V.ii.3.A.2.b.  When to Address Subordinate Issues and Ancillary Benefits
Use the table below to determine when to address entitlement or basic eligibility as applicable to subordinate issues and ancillary benefits in a rating decision.
Note:  In general, address entitlement to a subordinate issue or ancillary benefit only when entitlement can be awarded.  Do not put a benefit at issue merely to deny it.
Exception:  Consider a 10-percent evaluation under 38 CFR 3.324 in all applicable ratings regardless of whether the benefit is awarded or denied.
If … Then in the rating decision address …
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 special monthly compensation (SMC) under 38 CFR 3.350
SMC.
a permanent and total (P&T) SC evaluation is established
  • on a schedular basis, or
  • based on entitlement to IU
DEA.
Note:  Also consider entitlement to DEA whenever permanency of a total evaluation is subsequently established. Do not put entitlement at issue merely to deny it.
References:  For more information on
a single 100-percent evaluation is assigned in a compensation or pension case
A&A.
Note:  Do not put A&A benefits at issue if the evidence does not show entitlement.
  • a single 100-percent evaluation is assigned in a compensation or pension case, and
  • A&A is not payable
housebound.
Note:  Do not address entitlement to housebound benefits if the evidence does not show entitlement exists.
retroactive Veterans Pension is not claimed, but a qualifying disability may exist
retroactive benefits.
Note:  Advise the claimant that retroactive benefits may be payable.
Reference:  For more information on retroactive pensions, see 38 CFR 3.400(b)(1)(ii)(B).
a pension claimant fails to meet the schedular requirements for P&T disability
extra-schedular consideration under 38 CFR 3.321(b)(2).
a Veteran has
  • no compensable evaluation(s), and
  • more than one noncompensable evaluation
a 10-percent rating under 38 CFR 3.324.
Important:
  • This benefit must be considered in all applicable ratings, including confirmed ratings, even when entitlement is denied.
  • An applicable rating is one in which a noncompensable SC evaluation is assigned or confirmed.
  • The guidance expressed in this row applies without regard to whether or not the Veteran is in receipt of SMC separate and distinct from the noncompensable schedular evaluations.
a claim for SC is denied for
  • a psychosis based on wartime service, or
  • any mental disorder based on Gulf War service
Reference:  For more information on periods of war, see 38 CFR 3.2.
treatment under 38 U.S.C. 1702.
Note:  Do not address entitlement if the evidence does not show entitlement exists.
  • there is a reasonable probability that the Veteran’s death may be SC, whether from
    • disease
    • injury, or
    • self-infliction, and
  • a claim for survivors benefits is received
 DIC.
  • at the time of death the Veteran was rated 100-percent disabled due to SC disabilities or entitled to IU, and
  • a claim for survivors benefits is received
a rating initially establishes, as specified in M21-1, Part XIII, Subpart i, 2.B.1.b and c, that a(n)
  • Veteran is entitled to Chapter 11 compensation for a qualifying condition(s), or
  • active duty service member has a qualifying condition(s) incurred or aggravated in the line of duty (LOD)
SAH.
Reference:  For more information on entitlement to SAH, see
a rating initially establishes, as specified in M21-1, Part XIII, Subpart i, 2.B.1.d, that a(n)
  • Veteran is entitled to Chapter 11 compensation for a qualifying condition(s), or
  • active duty service member has a qualifying condition(s) incurred or aggravated in the LOD
SHA.
Reference:  For more information on entitlement to SHA, see
a rating initially establishes, as specified in M21-1, Part XIII, Subpart i, 2.A.1.a, that a(n)
  • Veteran is entitled to Chapter 11 compensation for a qualifying disability, or
  • active duty service member has a qualifying disability incurred or aggravated during such service
  • automobile, and
  • automobile adaptive equipment.
Reference:  For more information on entitlement to an automobile or automobile adaptive equipment, see
a rating initially establishes, as specified in M21-1, Part XIII, Subpart i, 2.A.1.c, that a(n)
  • Veteran is entitled to Chapter 11 compensation for a qualifying disability, or
  • active duty service member has a qualifying disability incurred or aggravated during such service
automobile adaptive equipment.
  • SC is established for diabetes mellitus, and
  • there is a diagnosis of hypertension
 SC for hypertension as secondary to diabetes mellitus only as described in M21-1, Part V, Subpart iii, 11.2.f.
  • the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and
  • there is evidence in the Veteran’s claims folder or under VA control that indicates the Veteran may be unemployable due to SC disability
IU.
Reference:  For more information on reasonably raised claims for IU, see
Reference:  For information on raising the issue of competency while evaluating other evidence, see M21-1, Part X, Subpart ii, 6.A.2.a.

V.ii.3.A.2.c.  Considering Complications of an Expressly Claimed Issue
When deciding expressly claimed issues, decision makers must consider entitlement to compensation for any complications/residuals that are within scope of the claim, including, but not limited to, those identified by the rating criteria for that condition in 38 CFR Part 4.  A specific claim is not required to award a within-scope complication/residual.
Decision makers will consider all lay and medical evidence of record in order to adjudicate entitlement to any additional benefits for complications or other residuals of a claimed issue, such as:
  • complications of diabetes mellitus
  • residuals of cancer or treatment for the SC cancer
  • scars as the result of surgical intervention for an SC disability
  • neurological disabilities related to the spine
  • complications of progressive disorders, such as
    • ALS, or
    • multiple sclerosis (MS), or
  • constitutional symptoms caused by systemic disorders, such as
    • rheumatoid arthritis (RA), or
    • ankylosing spondylitis.
Notes:
  • The above list is not intended to be comprehensive.  Decision makers must consider the evidence in each case and determine whether additional issues are within scope.
  • With respect to residuals of cancer or treatment, in Bailey v. Wilkie, 33 Vet.App. 188 (2021) the court held that although residuals of prostate cancer under 38 CFR 4.115b, DC 7528 are rated as voiding dysfunction or renal dysfunction, whichever is predominant, other residual disability caused or aggravated by cancer, or its treatment, may be within scope if reasonably raised by the evidence.  38 CFR 3.155(d)(2) and 38 CFR 3.160 require VA to develop and adjudicate related claims for secondary SC when the claim for the disabilities is reasonably raised during the adjudication of a formally initiated claim for re-evaluation of the primary SC disability.
  • Entitlement to SC for the complication/residual, unless explicitly claimed, should only be placed at issue when entitlement is established.  When entitlement is not established, but relevant evidence is present, discussing the relevant evidence is appropriate for inclusion in the Reasons for Decision of the expressly claimed issue.
  • When evidence shows the presence of a potential complication/residual, decision makers must ensure there is adequate medical evidence, including an examination, if needed, in order to determine entitlement.
References:  For more information on

3.  Other Issues to Consider

Change Date

 February 12, 2024

V.ii.3.A.3.a.  Other Issues to Consider When Evaluating Evidence
The table below lists matters to consider, in addition to determining issues within the scope of the claim as discussed in M21-1, Part V, Subpart ii, 3.A.1 and 2, when evaluating the evidence submitted with a claim.
Note:  In all substantially complete claims, consider the provisions of 38 CFR 3.155(d)(2) and M21-1, Part V, Subpart ii, 3.A.1 and 2, and adjudicate any issues considered within scope of the claim.
If the issue is …
Then consider …
SC
soliciting claims for unclaimed, chronic disabilities shown by the evidence.
Notes:
  • The mere presence of medical evidence does not constitute a claim because there is no intent to apply for benefits shown.
  • Solicit a claim from the Veteran to determine whether they wish to pursue the unclaimed disabilities (or “issues”) by submitting a claim on a prescribed VA form. Provide the Veteran with information about how to obtain the prescribed form.
References:  For more information on
secondary SC
whether the
  • non-service-connected (NSC) condition is the direct result of the SC condition, or
  • SC condition has worsened the NSC condition beyond normal progression and, if so, what was the baseline level of disability prior to aggravation and what is the level currently.
Examples:
  • A Veteran has an SC left knee injury. As a result of favoring the left knee, a right knee disability develops that is secondary to the original SC disability.
  • A Veteran develops a heart condition or impotence secondary to SC diabetes.
Reference:  For more information on claims for secondary SC based on the worsening of an NSC condition, see
SC for PTSD
whether the claimed stressor
  • may be established on the basis of the Veteran’s lay testimony alone under 38 CFR 3.304(f), or
  • must be corroborated with additional evidence.
Reference:  For more information on rating PTSD claims, see M21-1, Part VIII, Subpart iv, 1.D and E.
SC for an undiagnosed illness (Gulf War)
evidence of
  • active military, navy, or air service in the Southwest Asia theater of operations during the Gulf War
  • the manifestation of one or more signs or symptoms of undiagnosed illness
  • objective indications of chronic disability during the relevant period of service, or to a degree of disability of 10 percent or more within the specified presumptive period, and
  • a nexus between the chronic disability and the undiagnosed illness.
Reference:  For more information on SC for disabilities associated with Southwest Asia service  under 38 CFR 3.317, see M21-1, Part VIII, Subpart ii.
entitlement to compensation under 38 U.S.C. U.S.C. 1151
whether
  • hospital, medical, or surgical treatment or vocational rehabilitation was rendered by VA, and
  • an increase in disability occurred and, if so, was it due to an
    • instance of fault of VA, or
    • event not reasonably foreseeable, such as an accident.
Note:  Do not solicit a claim for compensation under 38 U.S.C. 1151 by sending an application to a potential beneficiary solely because the evidence of record suggests or raises the possibility that 38 U.S.C. 1151 may be applicable.
Reference:  For more information on compensation under 38 U.S.C. 1151, see M21-1, Part VIII, Subpart iv, 6.A–C.
evaluation of a disability
  • old and new criteria when a rating schedule revision has occurred, see M21-1, Part V, Subpart ii, 4.A.6.m
  • DeLuca v. Brown, 8 Vet.App. 202 (1995), if applicable to the musculoskeletal condition, and
  • whether a referral for consideration of an extra- schedular evaluation is warranted.
Note:  38 CFR 3.105(e) is only applicable when there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.
References:  For more information on determining whether
entitlement to pension
whether the disabilities meet the schedular requirements.
Note:  The extra-schedular provisions of 38 CFR 3.321(b)(2) must also be considered if schedular requirements are not met.
Reference:  For more information on schedular requirements, see
entitlement to retroactive pension
entitlement under 38 CFR 3.400(b)(1)(ii), if a qualifying disability exists.
denial of maximum evaluation
assigning the next higher evaluation.
a disability falling between schedular grades
entitlement to the higher evaluation under 38 CFR 4.7, if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, assign the lower evaluation.
References:  For more information on
a death case
accrued benefits if
Reference:  For more information on accrued benefits, see M21-1, Part XI, Subpart ii, 3.A–E.
a supplemental claim for Veterans Pension that involves
  • evidence of new disabilities, or
  • a change in the evaluation of any previously- evaluated disabilities
Veterans Pension with a formal, coded rating decision.
a claim for a temporary total evaluation for hospitalization under 38 CFR 4.29 or convalescence under 38 CFR 4.30
either claim under 38 CFR 4.29 or 4.30 as part of a claim for increased evaluation for the underlying disability(ies).
P&T disability status
guidance discussed in M21-1, Part II, Subpart iii, 1.A.3.d.
References:  For more information on
Reference:  For more information on the requirement of a complete claim, see