(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.
(Authority: 38 U.S.C. 501(a), 1160)
Cross References:§ 3.385 Disability due to impaired hearing; § 4.85 Evaluation of hearing impairment.
[53 FR 23236, June 21, 1988, as amended at 69 FR 48149, Aug. 9, 2004; 74 FR 11483, Mar. 18, 2009]
Notes of Decisions
Cited in
21
cases (
4 in the last 5 years), 1996–2022 · leading case:
Slaughter v. McDonough, 29 F.4th 1351 (Fed. Cir. 2022).
Slaughter v. McDonough, 29 F.4th 1351 (Fed. Cir. 2022).
· cites it 3× “For example, 38 C.F.R. § 3.383 provides that, where a veteran has “[l]oss or loss of use of one kidney as a result of service-connected disability and involvement of the other kidney as a result of non- service-connected disability,” “[c]ompensation is payable for the…”
William W. De Beaord , Jr. v. Anthony J. Principi, 18 Vet. App. 357 (Vet. App. 2004).
· cites it 4× “STEINBERG, Judge: The appellant, through counsel, seeks review of a May 28, 2002, Board of Veterans’ Appeals (BVA or Board) decision that denied (1) an increased rating for Department of Veterans Affairs (VA) service-connected postoperative residuals of a right-eye injury, (2)…”
Boyer v. West, 11 Vet. App. 477 (Vet. App. 1998).
· cites it 6× “The Board also concluded that the appellant was not entitled to a compensable rating for his left-ear hearing loss, because, under 38 C.F.R. § 3.383 (1997), his hearing in his non-serviee-eonneeted ear must be treated as normal for rating purposes because he is not totally deaf…”
Bagwell v. Brown, 9 Vet. App. 337 (Vet. App. 1996).
“While the BVA and the Secretary appear to be of the view that 38 C.F.R. §§ 3.383 (a) and 4.14 require that impaired vision in the non-service-connected eye be treated as normal in the absence of total blindness, such a conclusion does not necessarily follow from the language of…”
Villano v. Brown, 10 Vet. App. 248 (Vet. App. 1997).
· cites it 2× “84a, Diagnostic Code (DC) 6066, and, relying upon 38 C.F.R. § 3.383 (a)(1), found that the rating for the service-connected anatomical loss of an eye is established without regard to any non-service-connected vision impairment in the other eye, unless that non-serviee-connected…”
Boyer v. West, 12 Vet. App. 142 (Vet. App. 1999).
“Section 1160(a), title 38 United States Code and 38 C.F.R. § 3.383 (1998) provide, inter alia, that non-service-connected hearing loss will be treated as service connected if the appellant is totally deaf in both ears.”
Slaughter v. McDonough (Fed. Cir. 2022).
· cites it 3× “For example, 38 C.F.R. § 3.383 provides that, where a veteran has “[l]oss or loss of use of one kidney as a result of service-connected disability and involvement of the other kidney as a result of non- service-connected disability,” “[c]ompensation is payable for the…”
11-24 658 (Board of Vet. App. 2016).
· cites it 2× “§ 1160 (West 2002); 38 C.F.R. § 3.383 (2008). Absent total blindness, visual acuity in the nonservice-connected eye is considered to be normal (20/40 or better) irrespective of any vision disability in that eye.”
190517-5904 (Board of Vet. App. 2020).
· cites it 2× “§§ 1155 , 5107; 38 C.F.R. §§ 3.383 , 3.385, 4.1, 4.3, 4.7, 4.”
191018-38054 (Board of Vet. App. 2020).
· cites it 2× “§ 1160 (a)(3); 38 C.F.R. §§ 3.383 (a)(3), 4.85(f). If hearing in the service-connected ear is at least 10 percent disabling, then the service connected ear is rated as if both ears were service connected.”
191007-41057 (Board of Vet. App. 2021).
· cites it 2× “See 38 C.F.R. § 3.383 . To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.”
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