CHAPTER 2 RATING ACTIVITY--GENERAL

2.01 JURISDICTION OF RATING ACTIVITY

a. General. Rating agencies of original jurisdiction are vested with authority to make decisions and to take other actions in claims that require a rating decision. The rating specialist will apply the provisions of all pertinent laws, regulations, schedules for rating disabilities, policy statements, procedures, Administrators' and Secretaries' decisions, Court of Veterans Appeals precedents, and other legal precedents governing the Department of Veterans Affairs (VA).

b. Specific Major Decisions. Rating decisions are required on the following major issues relating to entitlement: service connection for diseases and injuries; evaluation of disability including statutory benefits (special monthly compensation); cause of death and relationship of service-connected diseases or injuries; competency of payee beneficiaries; whether the veteran was insane at the time of the commission of offenses resulting in a discharge otherwise precluding entitlement to benefits and in homicide cases, whether a potential beneficiary was insane at the time of causing or participating in the other person's death; permanent incapacity of a child for self-support; incurrence of additional disability or death due to hospitalization, medical or surgical treatment, vocational rehabilitation or examination (38 U.S.C. 1151); whether peacetime incurred or aggravated disability was a direct result of armed conflict, or while the veteran was engaged in extrahazardous service (when required by need for retroactive determination for a period prior to July 1, 1973); if service was less than 90 days, a determination if release was due to service-connected disability, or if at the time of discharge the veteran had a service-connected disability that would have justified discharge for disability (38 CFR 3.3); permanent and total disability from nonservice-connected disabilities in claims for pension and entitlement to housebound or aid and attendance benefits (38 CFR 3.3 and 3.351); entitlement to allowance for aid and attendance for a veteran's surviving spouse or parent and housebound for surviving spouses in receipt of DIC or Improved Pension.

2.02 COMPOSITION AND OPERATIONAL DIRECTION

a. General. Each regional office will contain a rating activity which operates under the direction of the Adjudication Officer (or a designated individual with similar responsibilities but a different title) or the Adjudication Officer's designee. The Adjudication Officer is responsible for ensuring that all rating specialists are fully qualified, receive sufficient training to maintain their proficiency, and are made aware of all pertinent changes in rules and procedures. The Adjudication Officer is also responsible for establishing suitable controls to ensure that the workload is distributed efficiently and equitably.

b. Temporary Members. The Adjudication Officer may temporarily detail any technically qualified employee to serve as a rating specialist upon compliance with established personnel requirements. The employee will receive training in basic rating principles. These assignments will assist the employee in understanding the rating functions and also will create a ready reserve of potential rating specialists to accommodate future staffing needs.

c. Rotation Of Rating Specialists. It is recommended that rating assignments be rotated approximately every six months in order to maintain a fresh and impartial view. Complete rotation may not be possible due to office size, but every attempt will be made to ensure that rating specialists do not review the same cases for an indefinite period of time.

d. Medical Members

(1) Consultation. The medical member will act as a medical consultant to the rating activity. The medical member may research complicated or unusual medical issues and provide medical information. The physician may also provide written medical opinions that would be placed in the record and weighed by the rating specialist(s), Hearing Officer, and station management in their deliberations. The medical member may also participate in hearings in which the observations of a medically trained person would be of value. The medical member may provide observations and descriptions during a personal hearing but will not, under any circumstances, conduct physical examinations during the hearing. A formal VA examination will be scheduled following the hearing if evidence, presented during the hearing, warrants one.

(2) Rating Decisions. Medical members trained in the preparation of ratings may prepare ratings or provide the second signature on a rating prepared by another rating specialist. However, a physician participating in a rating cannot prepare a written opinion concerning a medical question for that same case. Also, physicians who examined or treated a claimant may not subsequently serve as a rating specialist on a decision involving the consideration of that examination or treatment report. The medical member is required to have a current license to practice medicine as a condition of employment, but is not required to be a practicing physician.

2.03 RATING SCHEDULES

a. General. Each rating specialist will be issued a rating schedule and have medical and other reference material available to ensure quality of decisions. The term "rating schedule" refers to Code of Federal Regulations, Title 38, part 4 (38 CFR part 4) only. It may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. Employees and representatives transferring to other stations in positions requiring use of rating schedules are permitted to take their personal copy of the schedule to the new station.

b. Distribution. Copies of the rating schedule will be issued by Adjudication Officers to VA employees and other persons whose duties require its regular use. These will include accredited, paid, full-time representatives of veterans' and other cooperating organizations actually representing veterans before the rating activity. Maintenance of receipts or other records of accountability for rating schedules is not required.

2.04 SIGNATURES ON RATING DECISIONS

a. Accountability For Decisions. Rating specialists, in rating decisions to which they are signatories, are jointly and individually responsible for the review of the folder and for correctness of action in connection with all phases of the case.

b. Single-Signature Ratings

(a) The Adjudication Officer may authorize single-signature ratings for those issues that he or she believes can be successfully processed without benefit of a second review. Authority for single-signature ratings may vary among different stations and rating specialists depending on local circumstance.

(b) Single-signature rating participation is restricted to rating specialists who Adjudication Officers are assured have the experience to produce quality work independently without additional signatures. Authority for single-signature ratings may be granted to rating specialists for specific types of ratings as each demonstrates the requisite skill and understanding needed to ensure quality in those issues.

(c) Adjudication Officers must exercise sound management discretion in selecting which individuals are eligible for single-signature authority and carefully monitor the quality of single-signature ratings as specified in M21-4, paragraph 7.06b(2).

c. Two-Signature Ratings. All rating decisions that are not approved by the Adjudication Officer for single signature require only the signature of two rating specialists. Adjudication Officers may wish to require two signatures for ratings that provide special monthly compensation at a rate greater than SMC "K" and other special or complex issues such as POW and Persian Gulf War claims and claims for exposure to Herbicide Agents, Radiation, or Mustard Gas.

d. Adjudication Officer Approval. Single-signature rating authority does not eliminate the need for Adjudication Officer approval of those rating issues specified in M21-1 and 38 Code of Federal Regulations.

e. Absence of a Member. In the absence of the regularly assigned rating specialist, a completed rating requiring two signatures must be signed by another rating specialist or other qualified employee designated for this purpose by the Adjudication Officer or his or her designee. The substitute rating specialist will review the folder, fully participate in the rating and be jointly responsible with the other specialist for its completeness and accuracy, adding the word "acting" after his or her signature. The mere signing of the rating document by one rating specialist "for" another is not permissible.

2.05 REVIEW OF RATING DECISION BY SERVICE ORGANIZATIONS

a. Completed Ratings. Completed rating decisions, deferred ratings, and requests for examinations will be made available to the designated power of attorney for review. There should be an established control for this review. The review should be conducted within the Adjudication division unless permission to remove claims files is approved by the Adjudication Officer. The Adjudication Officer, whenever possible, should provide an area to review these cases. The service organization must cooperate with the control to ensure timely processing of work. The service organization may discuss decisions prior to release with the appropriate rating member or supervisor but should not cause unnecessary delays.

b. Copies of Ratings. The service organization may request copies of formal rating decisions for their files. If such a request is made, the rating specialist should cooperate and annotate the number of copies provided on ratings. If a copy is made for the power of attorney and the rating is altered, the service organization must be informed of the change. The service organization may request clarification of the decision. However, disagreements with a decision should be pursued through the appellate process.

2.06 DISSENT AND DIFFERENCES OF OPINION

a. Dissent. Two-signature ratings involving a dissenting opinion will be resolved by the Adjudication Officer who will provide the required second signature in any such decisions. The nonconcurring rating specialist will write the word "Dissenting" at the end of the rating where his or her signature would normally be provided for concurrence. The rating specialist will also prepare and sign a rating decision as if he or she had been the original author including the reasons and bases for the dissent. If the Adjudication Officer agrees with the original rating, he or she will sign it as the second signature validating the rating; if the Adjudication Officer agrees with the dissenting rating, he or she will sign it as the second signature. The original or dissenting decision will then be referred for processing, and copies of both decisions will be retained in the claims file.

b. Differences of Opinion Under 38 CFR 3.105(b) and Supervisory Review. See part IV, paragraphs 7.06 and 7.07, respectively.

2.07 EVALUATION OF EVIDENCE

The rating specialist has responsibility to recognize the need for evidence in relation to a claim. The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented, the need for additional evidence, and the need for physical examination. If all the evidence is favorable, the claim must be granted. (See Beaty v. Brown, 6 Vet. App. 532 (1994).)

a. Probative Value. The rating specialist will determine the probative value of medical or lay testimony. Accept evidence at face value unless contradicted by other evidence or sound medical or legal principles. In the presence of questionable or conflicting evidence, further development may be needed to corroborate testimony to include, if in order, field examinations and/or social surveys to obtain transcripts of original or other appropriate records. Rating decisions must clearly explain why evidence is found to be persuasive or unpersuasive. Decisions must address all the evidence and all of the claimant's contentions.

b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision.

2.08 DUTY TO ASSIST

No claim should be denied before all efforts to assist have been exhausted. The rating specialist is responsible for ensuring that those efforts have been made and that adequate time for response has been given.

a. Service Medical Records. It is VA's responsibility to get the veteran's service medical records (SMRs). If a claim is rated without service medical records, the file must reflect that all efforts to obtain them have been exhausted. Only when the service department indicates that no records can be found and the request to the claimant does not result in receipt of other evidence may final action be taken. The rating must outline the efforts made to obtain the records.

b. VA Facilities and Other Agencies. VA is also responsible for securing reports of treatment or hospitalization at VA facilities as well as information or evidence from other Federal departments or agencies. If a claimant indicates that such records exist, do not make a decision on the claim until those records are received or the source from which requested indicates that they are not available. However, if the evidence of record is sufficient to allow benefits claimed without reviewing those records, there is no need to delay rating action. See part III, paragraph 1.05c regarding a request for VA to pay a fee for evidence.

c. Private Sources. If a claimant indicates that evidence to support a claim may be available from a private source, do not rate the claim until he or she has been given the opportunity to furnish the evidence. VA must offer to help obtain that evidence. Simultaneously inform the claimant concerning the third party development, to include name and address of the third party and the specific evidence requested, and the consequences of VA's failure to receive the requested evidence. If the evidence is not received within the 60-day control period, proceed on the evidence of record.

d. Examination Requests. Rating specialists must ensure that the medical record is adequate for rating. If the evidence submitted by a veteran, including a written statement or oral testimony describing his or her symptoms, raises any question as to whether the disability has worsened, VA has the duty to request that a thorough medical examination be conducted.

2.09 ADEQUACY OF EXAMINATION AND HOSPITAL REPORTS

a. VA Examinations. If a VA report of examination (including VA Form 21-2680, "Examination of Housebound Status or Permanent Need for Regular Aid and Attendance") is inadequate in any essential particular, the reasons for inadequacy will be outlined and the report returned through channels for a corrected supplementary report or for reexamination. See also chapter 1.

b. VA Hospitalization. In the event a VA report of hospitalization is found to be inadequate in the following types of cases, request the original clinical records, including nurses' and doctors' orders:

(1) Cases involving injury or aggravation of injury or death as the result of hospitalization, medical or surgical treatment or examination.

(2) Death cases if the veteran, who died from a nonservice-connected cause, had a service-connected neuropsychiatric disability that reasonably may have impeded, obstructed, or otherwise interfered with treatment for the condition that caused death, but the report does not clarify this issue.

c. Non-VA Facilities. If a report from a State, county, municipal, contract, or recognized private institution or hospital is inadequate in any essential particular, request clarification, and if a satisfactory corrected report cannot be obtained within a reasonable period of time, authorize a VA examination.

2.10 WELL GROUNDED CLAIMS FOR OTHER THAN PERSIAN GULF WAR VETERANS UNDER PL 103-446

The following procedures apply to all claims except those within the jurisdiction of the four Area Processing Offices which pertain to undiagnosed illnesses of Persian Gulf War veterans under PL 103-446.

a. General. A well grounded claim is a plausible claim, one that is meritorious on its own or capable of substantiation. A well grounded claim need not be conclusive, only possible. In a claim for service connection, a well grounded claim generally requires (1) evidence of a current disability, (2) evidence of incurrence or aggravation of a disease or injury in service, and (3) evidence of a nexus, or link, between the two. Items (1) and (3) require medical evidence; item (2) may require medical evidence. A claim filed subsequent to an earlier claim which was not well grounded is a new claim. The claimant must provide evidence to meet the well grounded claim standard. See Edenfield v. Brown, 8 Vet. App. 384 (1995).

b. Evidence. The notice required by 38 U.S.C. 5103(a) is a predetermination rather than a postdetermination notice. Such notice is required only in the limited circumstance where there is an indication in the record that there may exist evidence which would make the claim well grounded. In such a circumstance, ask the claimant to submit such evidence within 60 days. If the evidence is not submitted, include that fact under the Evidence section of the rating and proceed with a decision. See Robinette v. Brown, 8 Vet. App. 69 (1995) and Beausoleil v. Brown, 8 Vet. App. 459 (1996).

c. Claims Unsupported by Law. Rating specialists should decline jurisdiction when claimed entitlement is unsupported by law. Examples of such claims are a pension claim from a veteran with only peacetime service, or a claim for compensation based solely on exposure to an environmental hazard without a specified disabling effect. These claims can be immediately dismissed for the lack of legal merit. Determinations such as these can be made by authorization without any development action provided the circumstances are unequivocally clear. A rating decision in such circumstances is not required. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

d. Denial on Merits. If a particular regulation governs the disposition of an issue, any denial should generally be on that basis. Examples of this principle include constitutional and developmental abnormalities (38 CFR 4.9) and hearing loss for VA purposes (38 CFR 3.385). Similarly, unless no disability at all is identified or claimed, a denial involving PTSD or environmental hazards should be based on the regulations specific to those issues.

e. Categories of Not Well Grounded Claims. The Reasons and Bases section of the rating decision must clearly explain why the claim for a specific condition(s) is not well grounded. The reasons to deny a claim for service connection of a disability as not well grounded are as follows:

(1) The claimed condition is not a disabling disease or injury. Examples include isolated clinical findings or "risk factors" such as hypercholesterolemia. These conditions may be denied as not well grounded only after an examination has ruled out associated disability; or,

(2) The claimed condition is not manifested by signs or symptoms in service medical records and/or is not detected on last examination; or,

(3) There is no nexus, or link, between the in-service condition and the current disability or cause of death, or there is no plausible relationship between the claimed condition and an existing service connected condition when secondary service connection is claimed under 38 CFR 3.310. These instances would include assertions of medical causation or relationship by a layman that are not supported by competent medical evidence. Also included are medical treatises suggesting a relationship but no accompanying medical evidence from a medical professional showing relevance to the instant case.

f. Medical Evidence. Where medical causation is the issue, competent medical evidence to the effect that the claim is plausible or possible is required to make the claim well grounded. If a claim is potentially plausible on a factual basis the regional office must initiate development. The duty to assist will prevail while development is undertaken. If after full development the claim is found to be well grounded, the merits of the claim must be reviewed. See Grottveit v. Brown, 5 Vet. App. 91 (1993); Grivois v. Brown, 6 Vet. App. 136 (1994); and Jones v. Brown, 7 Vet. App. 134 (1994).

g. Issue and Decision Statements. A decision to deny a claim as not well grounded is a decision that the evidence of record, that is, the merits of the claim, as they exist, do not warrant an allowance of the claim. Therefore, it is not necessary that the issue on a rating decision be couched in terms of whether or not the claim is well grounded. The issue should state the claim considered, and the decision should state whether or not the claim is granted.

h. Coded Conclusion. Any disability or disabilities considered not well grounded will be shown under the same code 8 as other disabilities and preceded by a diagnostic code of "9899". Multiple conditions can be included on the same line and considered as a single issue if they are not well grounded for the same reason. Follow the not well grounded item by annotating "(NWG)."

i. New and Reopened Claims. A claim filed subsequent to an earlier claim which was not well grounded is a new claim. The claimant must provide evidence to meet the well grounded claim standard. A claim filed subsequent to a merits denial is an attempt to reopen and new and material evidence is required.

2.11 NEW AND MATERIAL EVIDENCE

a. General. Once a well grounded claim has been finally disallowed, it cannot be reopened unless new and material evidence is received. (See 38 U.S.C. 5108 and 38 CFR 3.156.) If the rating activity determines that the evidence submitted by or on behalf of the claimant is not both new and material, a rating decision must be prepared in which it is indicated that the claim is not considered to have been successfully reopened. The rating must explain the reason why the submitted evidence is not considered to be new and material.

(1) New Evidence. New evidence is evidence that has not been previously considered. It is not merely cumulative of other evidence of record. Written or oral testimony is evidence. (See Cuevas v. Principi, 3 Vet. App. 542 (1992).) Evidence that is merely cumulative and tends to reinforce a previously well-established point is not considered new. Evidence that rehashes previously submitted statements or provides additional details to support previous statements is cumulative and is not new. (See Barnett v. Brown, 8 Vet. App. 1 (1995).)

(2) Material Evidence. Material evidence is evidence that is relevant to and probative of the issue at hand. It is material if it is of sufficient weight and significance that there is a reasonable possibility that the new evidence, when considered in light of all the evidence, both new and old, would change the outcome. (See Masors v. Derwinski, 2 Vet. App. 181 (1992).) Newly submitted or secured evidence must be material to the reasons of the last final denial. "Last final denial" includes denials on any basis such as lack of new and material evidence. The evidence must not be cumulative of evidence of record at the time of the last final denial, and must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final denial. (See Evans v. Brown, 9 Vet. App. 273 (1996).) If a claim for service connection was previously denied, an inaccurate history contained in subsequently received evidence would not constitute new and material evidence to reopen that claim. (See Reonal v. Brown, 5 Vet. App. 458 (1993).) An assertion of medical causation made by a layman is also not sufficient to reopen a previously disallowed claim. (See Allday v. Brown, 7 Vet. App. 517 (1995).)

(3) Evidence of Limited Weight. Not every piece of new evidence, even if relevant and probative, will justify reopening a claim because some evidence is of limited weight. (See Colvin v. Derwinski, 1 Vet. App. 171 (1991).)

b. Two-Step Analysis. A two-step analysis of evidence submitted is required to reopen a previously disallowed claim. First, determine whether the evidence is new. Second, decide whether it is of such significance that when taken alone or with the record it must be considered to render a fair decision. Once this analysis is done and it is determined that new and material evidence has been submitted, reconsider the claim in light of all previously existing and newly submitted evidence. (See Manio v. Derwinski, 1 Vet. App. 140 (1991), Hayes v. Brown, 7 Vet. App. 420 (1995) and Hodge v. West,155 F.3d 1356 (Fed. Cir. 1998).)

c. Benefit of the Doubt. The benefit of the doubt doctrine cannot take the place of the standard for reopening claims. The statute governing reopening requires only that new and material evidence be presented or secured and not that it be weighed. (See Martinez v. Brown, 6 Vet. App. 462 (1994).) In determining whether new and material evidence has been submitted to justify reopening a claim, the new evidence should be presumed to be credible. (See Hayes v. Brown, 7 Vet. App. 420 (1995).) Once a claim is reopened, the presumption as to credibility of the evidence no longer applies. (See Justus v. Principi, 3 Vet. App. 510 (1992).)

d. Claim Reopened. If the rating determines that the evidence is new and material, then the claim is considered reopened and all the evidence of record must be reviewed before making a decision. If, after review of all the evidence, the claim remains disallowed, the claimant must be informed of exactly what evidence was reviewed and of the reasons for the continued denial. Include a statement in the rating decision to the effect that the evidence submitted was found to be new and material.

2.12 CLEAR AND UNMISTAKABLE ERROR (38 CFR 3.105(a))

a. General. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A clear and unmistakable error also exists if VA overlooked material facts of record. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. An appellant is not entitled to raise again a "particular claim" of clear and unmistakable error once there has been a final decision denying that claim. If the clear and unmistakable error alleged is different from a clear and unmistakable error issue previously rejected, a rating is needed to determine whether or not a clear and unmistakable error was made on the new issue.

b. Denying Claims of Clear and Unmistakable Error. When clear and unmistakable error is alleged, it is first necessary to determine the precise nature of the claim. Claims of clear and unmistakable error will be denied by regional offices or BVA if they do not specify the factual or legal errors at issue. It must next be determined whether the error, considering the full record previously before the rating activity, would have changed the outcome at the time it was made. Errors that would not have changed the outcome are harmless and do not give rise to the need for revising the previous decision. Decisions based on the judgment of the rating specialist, such as the weight given to the evidence, cannot be reversed on the basis of clear and unmistakable error unless the decision is the result of misapplication of directives, laws, or regulations. A new medical diagnosis that "corrects" an earlier diagnosis ruled on in a previous rating is not to be considered an error in the previous rating.

c. Constructive Notice of Medical Records. VAOPGCPREC (Office of General Counsel Precedent Opinion) 12-95 (5/10/95) held that a decision maker may find clear and unmistakable error in decisions that became final on or after July 21, 1992, based on constructive notice of medical records if consideration of such records would affect the outcome of the claim. July 21, 1992 is the date of the Court of Veterans Appeals decision in Bell v. Derwinski, 2 Vet. App. 611 (1992), which instituted the constructive notice rule. Under this rule, rating specialists have constructive notice of medical records located anywhere in VA (such as in Veterans Health Administration or Vocational Rehabilitation files) even though they are not in the claims file when a decision is made. If a decision became final before July 21, 1992, the constructive notice rule does not apply.

d. Benefit of the Doubt Inapplicable. The benefit of the doubt rule of 38 U.S.C. 5107(b) is not applicable to a clear and unmistakable error determination since an error either undebatably exists or there was no error within the meaning of 38 CFR 3.105(a). (See Russell v Principi, 3 Vet. App. 310 (1992).)

e. Rules and Procedures Distinguished. A clear and unmistakable error may have been committed if VA failed to apply or incorrectly applied the appropriate law or regulations. In addition, a claimant may assert that failure to follow a procedural directive involved clear and unmistakable error because that procedure involved a substantive rule. If an error was made which determined the outcome of the claim, the Compensation and Pension Service should be contacted for advice regarding any rule-making arguments that may have been advanced. However, failure to follow the procedures contained in the Physician's Guide for Disability Evaluation Examinations does not constitute clear and unmistakable error. (See Allin v. Brown, 6 Vet. App. 207 (1994).)

f. BVA Decisions. A rating decision affirmed by the Board of Veterans' Appeals incorporates the regional office determination into the BVA decision (38 CFR 20.1104). A regional office does not have authority to overturn an appellate determination in the absence of new and material evidence. See part IV, subparagraph 8.43e.

(1) If a claimant alleges clear and unmistakable error in a BVA decision or in a regional office determination that has been affirmed by the BVA, the regional office must inform the claimant that the regional office lacks authority to reconsider its decision because of subsequent BVA review and that he or she should file a motion for reconsideration by the Board of Veterans' Appeals if review at that level is desired (38 CFR 20.1000). See part IV, subparagraph 11.31a(2)(d) for the procedures necessary to file a motion for reconsideration.

(2) A regional office also lacks jurisdiction to review a claim of clear and unmistakable error in an unappealed rating decision if, following subsequent reopening, a later BVA decision included a review of the entire record and affirmed the denial of benefits previously denied in the unappealed decision. In such a case, a notice of appellate rights must be sent to the claimant with the notification letter and any Statement of the Case that is prepared must include a citation to VAOPGCPREC 14-95. However, if BVA concludes that new and material evidence sufficient to reopen a prior, unappealed regional office decision has not been submitted, and denies reopening, the Board's decision does not serve as a bar to a claim of clear and unmistakable error in the