Question About Re-opened Claims.

[Rockhound]

Am I right to assume that any re-opened claim with new and material evidence, whether the claim is specified or not, that any Service connected condition must be looked at as if it were an implied claim for increase?

I'll try to explain this another way. If I re-open a claim for say a foot condition, but I have other Service conneceted condition of record. must the VA consider the other claims as an implied claim for increase as well?

Rockhound Rider

[Ricky]

I think you might want to search online under M-21 AND inferred condition AND veteran. I also suggest you search online under M-21 AND implied condition AND veteran. I don't remember ever having read anything on an implied condition but since you have heard of this then do this search. I suggest you do these searches because the M-21 is the manual V.A. uses for adjudicating claims. I've been told before by a rep of Paralyzed Veterans of America that the M-21 contains statutory requirements that V.A. must follow. In terms of some regulations on increases and reopened claim one regulation you might want to look at is 38 CFR 3.157 (;). I also suggest you read 38 CFR 3.156 and 38 USC 5108. I'm thinking that if there is evidence of an increase shown in an exam under 38 CFR 3.157 (:) then a claim for increase must be filed within one year to get the date of that exam as the effective date. I also suggest you read V.A. Office of General Counsel Precedent Opinion 12-98 which discusses asssignment of an earlier effective date on claims. There is a case I remember reading about inferred condition. I think it was EF v. Derwinski but maybe I'm wrong about this.

Delta - M21-MR is an operational guide for the rater. Very little of it is statutory in a legal sense. However, there are cases at the BVA in which the veteran has proven that certain parts were statutory/regulatory in nature. So it's kinda hit and miss

[deltaj]

Delta - M21-MR is an operational guide for the rater. Very little of it is statutory in a legal sense. However, there are cases at the BVA in which the veteran has proven that certain parts were statutory/regulatory in nature. So it's kinda hit and miss

Ricky, I am not talking about the M-21-MR. I am talking about the M-21. I do have to confess, however, that I've never heard of the M-21-MR so please forgive me if I'm wrong about this.

[deltaj]

Am I right to assume that any re-opened claim with new and material evidence, whether the claim is specified or not, that any Service connected condition must be looked at as if it were an implied claim for increase?

I'll try to explain this another way. If I re-open a claim for say a foot condition, but I have other Service conneceted condition of record. must the VA consider the other claims as an implied claim for increase as well?

Rockhound Rider ;)

My husband's claim file contains a first rating decision in 1965 or 1966 which states that no reasonable probability of a valid claim is shown. I searched the internet under the phrase no reasonable probability of a valid claim is shown AND veteran and found out from a BVA that in 1970 there was a regulation at 38 CFR 3.326 that allowed V.A. to rate a condition initially on the records of the service department without a V.A. examination. (I suspect that regulation was in effect when my husband's first decision was made in 1965 or 1966.) Another link after this search brought up the case of Garrett Hayre v. Togo West which specifically mentions the requirements in the M-21-1 for adjudicating claims when partial service medical records are received so now I've got a whole new avenue to look at it because after the initial rating decision in my husband's case partial service records were received, V.A. did an exam on him, and the day after the V.A. exam additional service medical records were received. The veteran, who is now my husband, received a 10% rating in an April 1966 decision for a mental condition. I helped him with an appeal to the Court but because V.A. stripped so many records from his file, I missed the late flowing service medical records received after the first exam. Based on Garrett Hayre v. Togo West it looks like the Court of Veterans Appeals was wrong when it stated this veteran abandoned his earlier claims because the record shows that the April 1966 decision was not final because of grave procedural error. BVA referred to this first rating decision as a deferred rating decision but if V.A. made this decision under 38 CFR 3.326 they must have reviewed some service records to make the decision so it was a denial not a deferred decision. I now understand that V.A. engaged in equitable tolling when they tricked or misled his representative from CDVA into signing a March 1967 decision in the wrong veteran's name with his C number on it. Those jerks knew darn well that the 1966 decision wasn't final of grave procedural error and V.A.'s failure to obtain his service records before making a V.A. exam. Now that I know a little more about V.A.'s secret rules mentioned in 2 cases recently decided by the federal circuit, I intend to take this case back to the federal circuit which denied jurisdiction because no constitutional issues were raised and there was no challenge of a particular statute. This case has a March 1971 denial of an increase. The first page of a 1978 decision which denied a total disability rating based on a non-service connected condition is missing. The jerks at V.A. removed key pieces of evidence from the record, a March 1972 decision denying him an increase above 70%, a May 1981 hearing transcript mentioning a written statement I gave the hearing officer, a 1983 rating decision showing V.A. in reviewing Social Security medical records and a w-2 from 1990 considered only one year of his wages, and a February 1990 letter which reduced his 100% rating to 30% effective January 1990 and did not mention that V.A. had determined that his claim for increase had been pending since October of 1989. I now believe the February 1990 rating decision which reduced his rating from 100% to 30% was an illegal reduction in part because this veteran's initial claim was a claim for the maximum and that claim did not become final because of grave procedural error. I seem to recall that the 1983 decision stated the veteran's appeal was made moot by their determination on the date of the reopened claim. Those creeps in 1974 had made a statement in a social survey something like, "This veteran might be able to work if he has constant support . . ." I married my husband in 1979 but it pains me considerably to look at his Social Security wage record and realize that in 1974 and in every year thereafter his wages were below the poverty threshold for one person. He had been in 3 mental hospitals when he was in service. How in blazes could V.A. be so callous as to not to grant a 10% rating based on partial service records on a veteran who was that sick to begin with? Sorry for the rant but I am extremely p*ssed off about this.

[Pete53]

My experience with VA is if you don't ask you will not get it. I recommend that Veterans include language in their Form 9 to ask VARO to identify any claim that is in the records presented and to specifically ask for what you want except PTSD.

If its PTSD and you are not a combat Veteran you should ask for service connection for mood disorders in my opinion. That way you can fall back on Depression or any other co morbid condition that comes with PTSD.

[broncovet]

Rock..altho Pete is right...the VA will break every regulation in the book to deny. They do this on purpose because:

1. Many Vets dont know better and never appeal.

2. Many Vets die waiting on the long appeal process and never get paid.

3. Even if the Veteran is successful in the appeal, the monies paid the Veteran will get paid out of next year or the following years budget without interest.

Its a no brainer for the VA...both delays and denials save the VA billions. As long as it is profitable for the VA to continue delaying and denying, it will continue.

I dont know where the regulation is that governs this, but when a Veteran applies for benefits the VA must assume the Veteran is seeking the maximum benefit allowable under the law. They cant just say...ahhh heck..he isnt seeking benefits for his amputated leg, he is just seeking benefits for hearing loss so he can get free hearing aids. You see, if the Veteran goes to a VA doc and tells him this amputated leg he got in the military is causing him phantom pain, that constitutes an informal claim for an amputated leg in addition to Vets current claim for hearing loss. That is, the Vet going to the doc complaining of his phantom pain from his amputated war wound leg, "specifies the benefit sought".

I do recall somewhere about a judge scolding the VA for inisisting on dividing a Veterans claims up...a claim for hearing loss, another claim for tinnitus, another claim for amputated leg, etc.

The Veteran is seeking VA benefits...the maximum in which the law will allow! Even raters do not understand this, and the VA RO's often tries to weasel out of this saying the Veteran must specify the benefit sought.

I think, under appeal, you could likely win, if you sought treatment for those conditions. However, the VA requires "chronicity of treatment". If you had a war injury in 1970, but got no treatment for it until 2009, its gonna be hard for you to win that claim for that benefit.

Edited December 19, 2009 by broncovet