38 CFR § 3.383
Special consideration for paired organs and extremities
Comes up when a veteran has significant vision, hearing, kidney, limb, or lung loss on one side from service and a separate, unrelated impairment on the matching paired organ.
How the Board actually uses this section
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Read the 5,699 decisions citing § 3.383
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What this regulation says, in plain English
This section lets VA pay compensation for a nonservice-connected disability in a paired organ or limb (the other eye, ear, kidney, hand, foot, or lung) as if it were also service connected, when the service-connected side is already severe enough and the nonservice-connected side is impaired too. If the veteran later collects money from a lawsuit or settlement over the nonservice-connected injury, VA can offset the added compensation against that recovery.
Read the full text of 38 CFR § 3.383
This text was last amended by VA on December 14, 2016. We check it against eCFR every week.
(a) Entitlement criteria. Compensation is payable for the combinations of service-connected and nonservice-connected disabilities specified in paragraphs (a)(1) through (a)(5) of this section as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran's own willful misconduct. #
(1) Impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of non-service-connected disability and
(i) The impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or #
(ii) The peripheral field of vision for each eye is 20 degrees or less.
(2) Loss or loss of use of one kidney as a result of service-connected disability and involvement of the other kidney as a result of nonservice-connected disability.
(3) Hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of § 3.385 in the other ear.
(4) Loss or loss of use of one hand or one foot as a result of service-connected disability and loss or loss of use of the other hand or foot as a result of nonservice-connected disability.
(5) Permanent service-connected disability of one lung, rated 50 percent or more disabling, in combination with a nonservice-connected disability of the other lung.
(b) Effect of judgment or settlement. (1) If a veteran receives any money or property of value pursuant to an award in a judicial proceeding based upon, or a settlement or compromise of, any cause of action for damages for the nonservice-connected disability which established entitlement under this section, the increased compensation payable by reason of this section shall not be paid for any month following the month in which any such money or property is received until such time as the total amount of such increased compensation that would otherwise have been payable equals the total of the amount of any such money received and the fair market value of any such property received. The provisions of this paragraph do not apply, however, to any portion of such increased compensation payable for any period preceding the end of the month in which such money or property of value was received. #
(2) With respect to the disability combinations specified in paragraphs (a)(1), (a)(2), (a)(3) and (a)(5) of this section, the provisions of this paragraph apply only to awards of increased compensation made on or after October 28, 1986.
(c) Social security and workers' compensation. Benefits received under social security or workers' compensation are not subject to recoupment under paragraph (b) of this section even though such benefits may have been awarded pursuant to a judicial proceeding. #
(d) Veteran's duty to report. Any person entitled to increased compensation under this section shall promptly report to VA the receipt of any money or property received pursuant to a judicial proceeding based upon, or a settlement or compromise of, any cause of action or other right of recovery for damages for the nonservice-connected loss or loss of use of the impaired extremity upon which entitlement under this section is based. The amount to be reported is the total of the amount of money received and the fair market value of property received. Expenses incident to recovery, such as attorneys' fees, may not be deducted from the amount to be reported. #
§ 3.385 Disability due to impaired hearing; § 4.85 Evaluation of hearing impairment.
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