The Law Library

Regulations: 38 CFR

These are VA's own binding rules, published in the Code of Federal Regulations. Raters and the Board have to follow them. When a decision skips one, that's an error you can name.

Your rights and VA's duties

38 CFR 3.102

Reasonable doubt

When the evidence for and against you is about even, VA has to decide that point in your favor. This is the benefit of the doubt.

"such doubt will be resolved in favor of the claimant"

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38 CFR 3.103

Procedural due process

You have a right to written notice of every decision, a hearing, and a representative. VA is supposed to help develop your claim, not oppose it.

"Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation."

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38 CFR 3.159

Duty to assist

VA has to help you get evidence for a substantially complete claim, including your service records, VA records, and records you identify, and give you an exam when one is needed to decide the claim.

"VA has a duty to assist claimants in obtaining evidence to substantiate all substantially complete initial and supplemental claims"

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38 CFR 3.104

Binding decisions and favorable findings

Anything VA already found in your favor binds later raters and the Board unless they show clear and unmistakable error. Read the favorable findings in every letter.

"is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators"

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38 CFR 3.155

How to file a claim, and intent to file

An intent to file holds your effective date for one year from the day VA receives it, as long as the complete claim comes in within that year.

"VA will consider the complete claim filed as of the date the intent to file a claim was received"

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Service connection

38 CFR 3.303

Principles of service connection

Lays out how a condition gets connected to service, including conditions first diagnosed after discharge when the evidence shows they started in service.

"Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service."

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38 CFR 3.304

Direct service connection, including combat

For combat veterans, your own credible account of what happened in combat can prove the in-service event, even without a record of it.

"Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection"

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38 CFR 3.306

Aggravation of a condition you had before service

If a condition you entered with got worse during service, VA presumes service aggravated it unless it shows the increase was natural progress.

"where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease"

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38 CFR 3.307 and 3.309

Presumptive conditions

Certain chronic diseases, and diseases tied to exposures like Agent Orange and Camp Lejeune, are presumed connected if they show up within the set time, so you don't need a nexus opinion.

"will be considered to have been incurred in or aggravated by service"

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38 CFR 3.310

Secondary conditions

A condition caused or made worse by a service-connected condition is itself service connected.

"disability which is proximately due to or the result of a service-connected disease or injury shall be service connected"

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38 CFR 3.317

Gulf War undiagnosed illness

Gulf War veterans can be compensated for undiagnosed illnesses and certain chronic multisymptom illnesses without a diagnosis or a nexus.

"VA will pay compensation"

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How ratings work

38 CFR 4.1

Essentials of rating

Ratings are supposed to reflect the average loss of earning capacity, judged against the whole medical history, not one snapshot.

"The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity"

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38 CFR 4.2

Reading exam reports

If an exam report doesn't have enough detail to rate the condition, the rater is required to send it back as inadequate.

"it is incumbent upon the rating board to return the report as inadequate for evaluation purposes"

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38 CFR 4.3

Reasonable doubt in ratings

The benefit of the doubt applies to how bad your condition is, not only to whether it's connected.

"resolved in favor of the claimant"

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38 CFR 4.7

Higher of two ratings

When your symptoms fall between two levels, you get the higher one if your picture more nearly fits it.

"the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating"

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38 CFR 4.10

Functional impairment

Ratings are about how the condition affects your ability to function in daily life, including work.

"The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment."

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38 CFR 4.40 and 4.45

Functional loss in muscles and joints

Weakness, fatigue, lack of endurance and pain on use all count when rating musculoskeletal conditions, not just range of motion on a good day.

"Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance."

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38 CFR 4.59

Painful motion and joint testing

Painful, unstable or misaligned joints from a healed injury are entitled to at least the minimum rating, and joints should be tested several ways.

"The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing"

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38 CFR 4.130

Mental disorders rating formula

The general formula VA uses to rate PTSD, depression, anxiety and other mental health conditions, based on occupational and social impairment.

"The nomenclature employed in this portion of the rating schedule is based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)"

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38 CFR 4.16

Individual unemployability (TDIU)

If service-connected conditions keep you from holding substantially gainful work, you can be paid at the 100% rate even when your combined rating is lower.

"all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled"

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38 CFR 3.350

Special monthly compensation

Extra monthly payments on top of your rating for things like loss of use of a hand, foot or creative organ, and for housebound or aid-and-attendance needs.

"Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs"

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Effective dates and protections

38 CFR 3.400

Effective dates

Sets the date your pay starts from. File within one year of separation and it can go back to the day after discharge.

"Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service"

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38 CFR 3.105

Revising decisions and proposed reductions

Before VA cuts a rating it has to propose it in writing and give you 60 days to send evidence. Ask for a hearing within 30 days and you're heard before it decides.

"provided that a request for such a hearing is received by VA within 30 days from the date of the notice"

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38 CFR 3.344

Stabilized ratings

A rating held at the same level for five years or more can't be reduced on one exam unless the improvement is shown to be lasting.

"apply to ratings which have continued for long periods at the same level (5 years or more)"

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38 CFR 3.951

Protected ratings

A rating held at or above a level for 20 years can't be reduced below that level except for fraud.

"will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud"

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38 CFR 3.655

Missing a VA exam

Skip an exam on a claim for increase or a supplemental claim and the claim is denied. On an original claim VA rates what's in the file. Good cause, like a hospitalization, counts.

"or a claim for increase, the claim shall be denied"

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Reviews and appeals

38 CFR 3.2500

Your review options

After a decision you have one year to pick a lane: supplemental claim, higher-level review, or Board appeal. Staying in the lanes on time protects your effective date.

"Within one year from the date on which the agency of original jurisdiction issues a notice of a decision"

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38 CFR 3.2501

Supplemental claims

The lane for new and relevant evidence. VA re-decides the claim with the new evidence in the file.

"who disagrees with a prior VA decision may file a supplemental claim"

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38 CFR 3.2601

Higher-level review

A senior reviewer looks at the same file again. No new evidence is allowed in this lane.

"the higher-level adjudicator may not consider additional evidence"

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38 CFR 3.156

New evidence and service records found later

Defines new and relevant evidence, and requires VA to reconsider an old claim if it finds service records that existed but weren't in your file.

"VA will reconsider the claim"

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Representation and fees

38 CFR 14.629

Who can help with your claim

Only VA-accredited VSO representatives, claims agents and attorneys may help prepare, present and prosecute claims. Free help is available through accredited VSOs.

"No individual may assist claimants in the preparation, presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has first been accredited by VA for such purpose."

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38 CFR 14.636

When fees can be charged

Accredited agents and attorneys generally can't charge you for help until after VA has decided your claim. Paying for help filing an initial claim is a red flag.

"Agents and attorneys may charge claimants or appellants for representation provided after an agency of original jurisdiction has issued notice of an initial decision"

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Voc rehab

38 CFR 21.51

Employment handicap for VR&E

Your service-connected conditions only have to be a real part of what's holding you back at work, not the only or main cause.

"need not be the sole or primary cause of the employment handicap"

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This is general education, not legal advice, and not from the VA. Laws and regulations change, so always check the official source linked on each entry. For advice on your own claim, work with a free VA-accredited representative or a Veterans Service Organization. We are not the VA and are not affiliated with the VA.

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