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]

Does the 1997 exam show his condition worsened?

http://www.va.gov/vetapp13/Files2/1314713.txt

"The purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened. Massie v. Shinseki, 25 Vet. App. 123, 132 (2011)."

[Philip Rogers]

Technically, yes, his treatment should have caused a review of his claim and they should've given him an increase or at least considered it. jmo

pr

[carlie]

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 a lowball 20% service connection for seizures back in 1990. We have never applied for any increase or filed any claims until now. 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?

Treatment can equate to several things.

If the 5 treatment records simply relate to medications, that won't be any help for an increase.

What do the 5 treatment records state in regards to

number of seizures in what amount of time period ?

This would be key to any increase for a seizure evaluation.

General Rating Formula for Major and Minor Epileptic Seizures:

Averaging at least 1 major seizure per month over the last year

100

Averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly

80

Averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week

60

At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly

40

At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months

20

A confirmed diagnosis of epilepsy with a history of seizures

10

Note (1): When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy.

[63SIERRA]

Technically, yes, his treatment should have caused a review of his claim and they should've given him an increase or at least considered it. jmo

pr

phillip what happens if they didnt increase or even consider the increase in severity to raise the rating of the claim, what recourse do we have.

also are the regulations saying that an informal claim can be opened ? by just informing them of the hospitalzation and dates of treatment ?

Edited November 1, 2013 by 63SIERRA

[Chuck75]

There was a federal court decision on 4 Jan 2013 that may have a favourable impact. I don't have the exact reference at hand, and hope that someone has it handy.

[free_spirit_etc]

There was a federal court decision on 4 Jan 2013 that may have a favourable impact. I don't have the exact reference at hand, and hope that someone has it handy.

There is a January 4, 2013 decision on effective dates posted here: http://veteranclaims.wordpress.com/2013/01/04/harris-v-shinseki-no-2012-7111decided-january-4-2013-fedcir-38-u-s-c-%C2%A7-5107b-duty-is-separate-from-duty-articulated-in-moody-szemraj-and-roberson-resolve-ambiguities-in-veterans/

Harris v. Shinseki, No. 2012-7111 Edited November 1, 2013 by free_spirit_etc