Has This Changed?

[Guest Morgan]

4. In VAOPGCPREC 12-98, the General Counsel noted that they could find no indication in the regulatory history that the provisions of § 3.400(q)(1)(i) do not apply to a claim for an increased rating based upon new and material evidence submitted prior to expiration of the appeal period or before an appellate decision is issued.

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A conclusion that the regulation does not apply in such claims would conflict with § 3.104(a) which governs finality of decisions. Considering this, General Counsel proceeded to consider the appropriate effective date for a claim for an increased rating based upon new and material evidence. General Counsel concluded that the plain language of 38 C.F.R. § 3.400(q)(1)(i) supports the conclusion that the effective date for an increased rating based upon new and material evidence submitted during the appeal period or prior to an appellate decision is the date of claim or the date on which the evidence shows entitlement, whichever is later. However, if the facts establish that a veteran's disability increased within one year prior to receipt by VA of the original claim for increased rating, the effective date of the increase is the date on which the increase in disability occurred.

5. For example, consider a situation where a claim for increase is filed with a regional office on January 10, 1998. Following development, including a VA examination, a determination is made that an increase in disability to the next level has not been established. In Hazan v. Gober, 10 Vet.App. 511 (1997)), the Court said that the term "increase" as used in the statute means the date on which the next disability level was reached. During the appeal period, or prior to issuance of a final decision on appeal, new and material evidence in the form of private medical records are received on June 24, 1998. These records show the veteran was seen by his private physician on June 6, 1998, and substantiate that an increase in his SC disability to the next disability level was evident on June 6. According to the General Counsel opinion, the prior decision has been rendered a nullity and the effective date must be determined under the provisions of 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400. The effective date of an increased rating based upon new and material evidence received within the appeal period or prior to appellate review is the date on which the facts establish the increase occurred or the date of the original claim for increase, whichever is later. In this example, the increase occurred on June 6, 1998, and that would be the appropriate effective date of increased disability.

Edited March 13, 2006 by Morgan