IU, SMC Ratings, Secondary S/C, & DBQs April 2012

1. NCACVSO SPRING TRAINING IU, SMC Ratings, Secondary S/C, & DBQs April 2012 VA Regional Office Winston-Salem Presenter: Jack Hudson

2. Individual Unemployability (IU) The provisions of 38 C.F.R. § 4.16(a) provide the minimal schedular standards for TDIU consideration: • if there is one disability, this disability shall be ratable at 60 percent or more; • and, if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more and additional disability to bring the combined rating to 70 percent or more.

3. Individual Unemployability (IU) Alternatively, if these schedular requirements are not met, but the evidence shows the Veteran is unemployable due to service-connected disabilities, 38 C.F.R. § 4.16(b) authorizes VA to grant a TDIU evaluation on an extra-schedular basis upon approval by the Director, Compensation Service.

4. Individual Unemployability (IU) If a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, or other submission expressly requests TDIU, this will be considered a claim for increased evaluation in all S/C disabilities unless TDIU is expressly claimed as being due to one or more specific disabilities. The initial notice letter will provide VCAA compliant information for all S/C disabilities that are not currently evaluated at the schedular maximum evaluation for that condition.

5. Individual Unemployability (IU) The VA Form 21-8940 remains an important vehicle for developing the claim and determining entitlement to a TDIU evaluation. However, the determination of an effective date for the establishment of a TDIU evaluation is no longer primarily based upon the date of receipt of the VAF 21-8940, but upon consideration of other factors such as the date of the original claim or claim for increase and the date that the evidence establishes inability to maintain substantially gainful employment due to S/C disability(ies).

6. Individual Unemployability (IU) As inability to maintain substantially gainful employment constitutes the basic criteria that must be satisfied for a TDIU evaluation, after the initial TDIU grant is awarded, VA must continue to ensure that the Veteran is unemployable. Therefore, the Veteran must complete and return a VA Form 21-4140, Employment Questionnaire, annually for as long as the TDIU evaluation is in effect. Yearly submission of the form is required unless the Veteran is 70 years of age or older, or has been in receipt of a TDIU evaluation for a period of 20 or more consecutive years (See 38 C.F.R. § 3.951(b)), or has been granted a 100-percent schedular evaluation.

7. Individual Unemployability (IU) The VA Form 21-4140 must be returned within 60 days or the Veteran’s benefits may be reduced. If the form is returned in a timely manner and shows no employment, then the TDIU evaluation will continue uninterrupted. The VA Form 21-4140 must be returned with the Veteran’s signature certifying employment status. A telephone call to the Veteran is not acceptable to certify employment status for TDIU claims.

8. Special Monthly Compensation (SMC) Special Monthly Compensation” came about to recognize the severity of certain disabilities or combinations of disabilities by adding an additional compensation to the basic rate.

9. Special Monthly Compensation (SMC) 1. Loss or loss of use (LOU) of specific organs, sensory functions, or extremities; 2. Disabilities that confine the veteran to his/her residence; 3. Disabilities that render the veteran permanently bedridden or in need of aid and attendance (A&A); 4. Combinations of severe disabilities that significantly affect locomotion; 5. Existence of multiple, independent disabilities each rated at 50% or 100%; 6. Existence of multiple disabilities which, in total, render the veteran in need of such a degree of special skilled assistance that, without same, would be permanently confined to a skilled-care nursing home.

10. Special Monthly Compensation (SMC) SMC’s are paid in addition to schedular disability compensation. SMC’s are evaluations, not disabilities. Thus, they accrue protection under 38 CFR 3.951. They are referred to in VA vernacular or acronym by the letter of the subparagraph of 38 USC 1114 that establishes the rate of payment. For example, SMC “K” refers to 38 USC 1114(k) that establishes the rate. Thus, that SMC is referred to as a “K”.

11. Special Monthly Compensation (SMC) Entitlement to SMC “K” requires: • Anatomical loss or LOU of one hand; • Anatomical loss or LOU of one foot; • Loss or LOU of both buttocks; • Loss or LOU of one or more creative organ(s); • Blindness of one eye; • Deafness of both ears; • Complete organic aphonia; or, • in the case of a women veteran, loss of breast tissue or following receipt of radiation treatment of breast tissue.

12. Special Monthly Compensation (SMC) Entitlement to SMC “L” requires: • Anatomical loss or LOU of both feet; • Anatomical loss or LOU of one hand and one foot; • Blindness in both eyes with bilateral visual acuity of 5/200 or less; • Being permanently bedridden; or • In need of A&A. For entitlement to SMC “L” on account of being permanently bedridden, it must only be shown that the veteran is permanently bedridden on account of S/C disability. The criteria for determining entitlement to A&A requires that the veteran be so helpless as to require the aid and attendance of another person to perform the personal functions necessary for daily living.

13. Special Monthly Compensation (SMC) Entitlement to SMC “S” requires a single 100% S/C disability, and: • additional S/C disability or disabilities independently ratable at 60 percent, or • be factually housebound due to S/C disability. Unlike other SMC’s, “S” can be temporary rather than permanent. A situation known as “statutory housebound” is often encountered when a veteran with a 60% S/C disability is awarded a temporary 100% evaluation for another S/C disability. In order to be considered factually housebound, the veteran must be substantially confined to his/her dwelling and the immediate premises solely because of S/C disability, and it must be reasonably certain that the disability (ies) and resultant confinement will continue throughout his/her lifetime.

14. Secondary Service Connection Grant service connection for the following under the provisions of 38 CFR 03.310(a) and (b): • disabilities that are proximately due to, or the result of, a SC condition, or • the increase in severity of a nonservice-connected (NSC) disability that is attributable to aggravation by an SC disability, and not to the natural progress of the NSC disability.

15. Secondary Service Connection When developing a claim for secondary service connection based on aggravation of an NSC disability, ask the Veteran to furnish medical evidence showing the • current level of severity of the NSC disability, and • its level of severity before aggravation by the SC disability, or as soon as possible after aggravation. Upon receipt of this evidence, VA will request a medical examination and opinion, to include a review of the C- folder by the examiner, to establish whether increased manifestations of the NSC disability are proximately due to an SC disability

16. Disability Benefits Questionnaires (DBQs) The Veterans Benefits Administration (VBA), in coordination and cooperation with the Veterans Health Administration (VHA), the Board of Veterans’ Appeals (BVA), and the VA Office of General Counsel (OGC), developed 81 DBQs. DBQs standardize VHA exam reports and enable private physicians to provide sufficient disability assessment information. DBQs from private physicians will preclude the need for VA exams in many cases.

17. Disability Benefits Questionnaires (DBQs) Who is qualified to complete Disability Benefits Questionnaires? In the private sector, a private physician with an active medical license is qualified to sign and attest to completed DBQs. The physician must have sufficient medical expertise to conduct a medical assessment regarding the type of DBQ completed. Within VHA, a wider category of physicians and clinicians are qualified to complete and release DBQs, including nurse practitioners and physician’s assistants.

18. Disability Benefits Questionnaires (DBQs) How are completed Disability Benefits Questionnaires submitted to VA? Physicians may mail or securely fax completed DBQs to the VA Regional Office (RO) handling the Veteran’s or Servicemember’s claim. The Veteran, Servicemember or their accredited representative may also submit completed DBQs directly to the VA RO in support of their claim.

19. Disability Benefits Questionnaires (DBQs) Vietnam Veterans with verified in-country service can also submit their claims for one of the three new Agent Orange presumptive conditions electronically through the Fast Track system athttps://www.fasttrack.va.gov/AOFastTrack/. The Fast Track system contains the Ischemic Heart Disease, Hairy and other B-cell Leukemia, and the Parkinson’s Disease DBQs in interactive electronic format, so physicians can quickly and easily access, complete, and submit those specific DBQs.

20. Disability Benefits Questionnaires (DBQs) All OMB-approved DBQs are available for download at: http://www.va.gov/vaforms/ as well as the DBQ Internet site athttp://benefits.va.gov/disabilityexams.