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

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NavyWife

Question

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 by NavyWife
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I like this part:

"In contrast, the statutorily-mandated benefit-of-the-doubt rule assists the VA in deciding a veteran’s claim on the merits after the claim has been fully developed: “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b). Thus, the Board’s consideration of the benefit-of-the-doubt doctrine does not replace VA’s duty under Moody, Szemraj, and Roberson to generously construe the evidence in this case and resolve any ambiguities in Mr. Harris’ favor."

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Free spirit-

Can u find any BVA cases similar to mine? When I searched, all I could find were TDIU cases that wanted an earlier effective date.

I know that he did go to VA because he was having a higher frequency of seizures. Whether the doctor wrote that down, I don't know. I could only access partial information from his records using the Blue Button download feature. The information only showed the ICD 9 code of the reason for his visit, the doctor name and the date of the treatment.

Do you think it will be a deal-breaker if the doc did not write down specifically " Vet states seizure frequency is increasing"?

I thought I read some cases where just by seeking treatment, it is assumed that the condition is worsening...

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NavyWife,

I will search and see if I can find anything.

I don't think it will necessarily be a deal breaker if the doctor didn't specifically write that down. Even if he wrote something about the frequency of seizures which indicated that they were more than what your husband was rated for, that might help.

For instance, you said your husband was rated at 20% - That is "At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months."

So it would seem like even if the doctor noted he had a major seizure in the last 6 months -- that would kick it to 40% (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).

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  • Moderator

Whoa, Hoss!

The VA and VAMC have a very different view of "seeking treatment" and "seeking benefits". If you go to the doc, the VA always assumes you are seeking treatment, unless you "show intent" to apply for benefits.

It isnt enough to seek treatment, to get an eed under 3.157. The CAVC has ruled there are 3 conditions the Veteran must meet to qualify as an informal "claim" under 3.157:

1. The claim has to be "in writing". No verbal claims.

2. The Veteran must "show intent" to apply for one or more benefits. (Showing intent for treatment isnt enough)

3. The Veteran must "specify benefit sought".

I am not sure how much of this applies to you, or if you meet the criteria above.

Source: I think this came from VBM, but there is a case where the CAVC verbalized the above criteria for an informal claim. Of course, the Veteran must still submit a formal claim if he has not already done so. However, one 21-526 should suffice for multiple informal claims.

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bronco,

Does that count for seeking an increase for conditions that are already SC?

The standards for seeking SC and for seeking an increase are different.

Edited by free_spirit_etc
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You might find some cases that are similar by searching for 38 CFR 3.157 (If you search for earlier effective date you will come up with tons of TDIU claims). The claims might not be exactly like yours, but you can begin to get a pattern of the cases that were denied and granted - and the reasoning. Also, look for the cases cited in the reasoning, and use those cases as a search term to search some more.

I am not even sure that you would have to show the RO "at fault" on this - for not adjudicating the claim earlier. But you very well might start building a case that an earlier VA exam showed that your husband's seizures had increased (even if the doctor didn't specifically use that word), and thus, the increased rating should be granted from the time of that VA exam.

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