Is This A Good Case For An Earlier Effective Date Using 3.157?

[NavyWife]

Is this a good case for an earlier effective date using 3.157?

I'm looking to get some opinions. I've been reading about 38 CFR 3.157 as an exception to the usual effective date being the date of claim.

My hubby was med boarded out of the Navy & received service connection for seizures. I was able to access partial medical records through MyHealth E Vet blue button feature. I saw he was treated 5 times by the VA for seizures with the 1st time being in 1997. Since he had VA treatment for his service connected disability, and we have now filed a formal claim for increase of the seizures, would he be eligible for a 1997 Earlier Effective Date under the 3.157 exception?

Here's a link to the 3.157 wording.

http://www.law.cornell.edu/cfr/text/38/3.157

Below, I have posted some excerpts from a BVA case related to 3.157.

With regard to the terms "application" or "claim", the Board

notes that once a formal claim for compensation has been

allowed, receipt of a VA hospitalization report, a record of

VA treatment or hospitalization will be accepted as an

informal claim for increased benefits, and the date of such

record will be accepted as the date of receipt of a claim.

38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a).

38 C.F.R. § 3.155© provides that when a claim has been

filed which meets the requirements of 38 C.F.R. § 3.151 or

38 C.F.R. § 3.152, an informal request for increase or

reopening will be accepted as a claim. 38 C.F.R. § 3.157

provides that once a formal claim for compensation has been

allowed, the date of outpatient or hospital examination will

be accepted as a claim when such reports relate to

examination or treatment for which service connection has

previously been established or when a claim specifying the

benefit sought is received within one year.

Edited October 25, 2014 by NavyWife

[free_spirit_etc]

Most of the decisions I am running across are ones where the claim for EED was denied because the vet didn't already have a service connection for the disability at the time of the exam. They were either trying for an EED on an original claim or a reopened claim. But even these can be useful because they repeat over and over again that 3.517 applies to claims for increase.

[NavyWife]

Then there's this document which another hadit member posted regarding what defines a pending claim & a bit about 3.157

http://www.bva.va.gov/docs/VLR_VOL2/Copy5--JohnFussellandJonathanHager.pdf

I read one thing on the Internet, then I keep digging & read things that say the exact opposite! It's so darn confusing. I know Asknod says VA law is constantly evolving & changing, but come on!!

That's why I need folks here to help me figure this out.

[free_spirit_etc]

It looks like to be considered an informal claim, the report has to indicate the condition had worsened:

Massie v. Shinseki

http://law.justia.com/cases/federal/appellate-courts/cafc/12-7087/12-7087-2013-07-29.html

"Although the language of § 3.157(b)(1) does not

expressly require that the report indicate the veteran’s

service-connected disability has worsened, any contrary

interpretation would be inconsistent with the statute, and

the regulation can hardly require less than the statute. It

also would make no sense, because under that reading

any subsequent medical record could trigger an informal

claim under § 3.157(b)(1)."

Edited November 1, 2013 by free_spirit_etc

[free_spirit_etc]

But this footnote on the above case might be helpful, as it does point out that the report does NOT have to be as detailed as the M21-1MR manual indicates they should be in order to qualify under 3.157.

"1 The Veterans Court also consulted the Veterans

Benefits Administration Adjudication Procedures Manual

(M21-1MR) which lists eight (8) different factors intended

to assist the VA in determining whether a report of examination

is sufficient for compensation and pension purposes.

The Veterans Court ultimately concluded, however,

that for a medical record to qualify as a “report of examination”

under § 3.157(b)(1), it could be far less detailed.

We agree with that assessment. As long as a report

references one or more actual examinations and indicates

that a veteran’s disability has worsened, it will qualify

under section § 3.157(b)(1)."

[NavyWife]

Free Spirit-

I'm amazed at how fast you can find this stuff!! Thank you!

Massie vs Shinseki is really good, because even though he was denied, it forced VA to really define what constitutes a "claim".

It sounds like the 2 key parts are that there must be an actual examination and it must indicate the SC condition has worsened.

Well I know we have the first part. Once I get the full medical records I can see if we have the second part.

I know this is a long shot & I can't imagine VA wanting to pay retro back to 1997!

[broncovet]

The criteria for the informal claim apply to an increase.

The word "increase" is important because

. You already have filed a completed 21-526, as your application wont be processed without it. You need not file a "new" 21-526 for each claim, one will suffice for multiple issues.

If you file an informal claim, without filing a 21-526, the VA is supposed to send you the form, and your informal claim will be accepted, provided you file the 21-526 within a year.