Help On 3.157

[carlie]

Back in 1978 VA told me in a events that caused my disabilities were documented as happening in the service with treatment being provided -- BUT denied service connection because the disabilities were not compensable to at least a degree of 10%. So, is there any way to use hospital reports dated two months after this denial under 3.157 -- It states "disallowed for the reason that the SERVICE CONNECTED DISABILITY is non compensable in degree. My disabilities had not even been S/C'd at all -- not even at 0 %

carlie

38 CFR

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

(Authority: 38 U.S.C. 5110(a))

(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

(Authority: 38 U.S.C. 501)

(2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.

(3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (b)(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee.

[26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 12055, Sept. 15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 1987; 60 FR 27409, May 24, 1995]

[Vike17]

Carlie,

Were these medical records from a VAMC? Remember, just because the VAMC says the conditions are service-connected doesn't mean anything. Service-conection determinations are made by the regional offices. If your regional office produced a rating decision stating that your claimed conditions were not service-connected, regardless of when the VAMC stated your disbilities were due to your service (before or after the rating decision), then that was the VA's determination. You should have appealed this decision within the one year with those records from the VAMC, providing the regional office didn't have them as evidence to consider.

If those records still exist and the VA doesn't know any thing about them, and the claim from 1978 is still denied, you may be able to re-open that claim with those records.

Does this make sense?

Vike 17

[Wings]

Back in 1978, VA told me [the] events that caused my disabilities were documented as happening in the service with treatment being provided -- BUT denied service connection because the disabilities were not compensable to at least a degree of 10%. Denial under 3.157 states "disallowed for the reason that the SERVICE CONNECTED DISABILITY is non-compensable in degree. My disabilities had not even been S/C'd at all -- not even at 0 %

Carlie, I think it's CUE !! Their own DENIAL LETTER shows evidence of SC Disability !!

They acknowledged in-service injury and in-service treatment, then they should have rated service-connected disability, even at 0% !

Seems like a Clear and Unmistakable Error to me !

~Wings

Edited October 3, 2006 by Wings

[Wings]

Some quick research ... ~Wings

CFR Sec. 4.31 Zero percent evaluations. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

CFR Sec. 4.31 A no-percent rating. In every instance where the schedule does not provide

a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. [29 FR 6718, May 22, 1964, as amended at 58 FR 52018, Oct. 6, 1993]

• A veteran may be rated at zero percent, meaning there is evidence of the service-connected condition, but it does not impair the veteran. An example is a minor scar. This zero percent rating, though not compensable, can be beneficial, since it may raise the veteran’s priority in other VA programs such as health care eligibility. In addition, it may be reviewed for a higher rating if the condition worsens.

• A veteran may have a number of disabilities individually evaluated as 0 percent which produce 10 percent combined disability and entitle the veteran to disability compensation.

*At the beginning of fiscal year 2005, there were more than 15,000 veterans in the category of “compensable zero” ratings.

*A veteran will be classified as either being non-service connected or service connected. In the former, there has been no injury or illness caused by the active duty service of the soldier. In the latter, the person has suffered an injury or illness directly resulting from active duty service. The VA takes into account whether or not the injury or illness resulted from active service and the income and assets of the veteran and his/her family when determining ability to make co-payments. The amount of co-payment is determined by what portion of a veteran’s care is “service connected.” A veteran may be hospitalized for a service connected condition, but then develop another non-service connected condition that requires care for a portion of the full stay. The service connected and non-service connected days of treatment have different co-payment structure. Service connected veterans typically only make co-payments for medications. There are no co-payments for treatments other than medications related to service connected conditions.

*Who is Eligible for Nursing Home Care?

http://www1.va.gov/OPA/fact/ltcare.asp

Any veteran who has a service-connected disability rating of 70 percent or more;

A veteran who is rated 60 percent service-connected and is unemployable or has an official rating of "permanent and total disabled;"

A veteran with combined disability ratings of 70 percent or more;

A veteran whose service-connected disability is clinically determined to require nursing home care;

Nonservice-connected veterans and those officially referred to as "zero percent, noncompensable, service-connected" veterans who require nursing home care for any nonservice-connected disability and who meet income and asset criteria; or

If space and resources are available, other veterans on a case-by-case basis with priority given to service-connected veterans and those who need care for post-acute rehabilitation, respite, hospice, geriatric evaluation and management, or spinal cord injury.

Priority Group 1: Veterans with service-connected disabilities rated 50% or more disabling

Priority Group 2: Veterans with service-connected disabilities rated 30% or 40% disabling

Priority Group 3: Veterans who are former prisoners of war; Veterans awarded the Purple Heart; Veterans whose discharge was for a disability that was incurred or aggravated in the line of duty; Veterans with service-connected disabilities rated 10% or 20% disabling; Veterans awarded special eligibility classification under Title 38, U.S.C., Section 1151, "benefits for individuals disabled by treatment or vocational rehabilitation"

Priority Group 4: Veterans who are receiving aid and attendance or housebound benefits; Veterans who have been determined by VA to be catastrophically disabled

Priority Group 5: Nonservice-connected veterans and noncompensable service-connected veterans rated 0% disabled whose annual income and net worth are below the established VA Means Test thresholds; Veterans receiving VA pension benefits;Veterans eligible for Medicaid benefits

Priority Group 6: Compensable 0% service-connected veterans; World War I veterans; Mexican Border War veterans; Veterans solely seeking care for disorders associated with: exposure to herbicides while serving in Vietnam; or exposure to ionizing radiation during atmospheric testing or during the occupation of Hiroshima and Nagasaki; or for disorders associated with service in the Gulf War; or for any illness associated with service in combat in a war after the Gulf War or during a period of hostility after November 11, 1998.

Priority Group 7: Veterans who agree to pay specified copayments with income and/or net worth above the VA Means Test threshold and income below the HUD geographic index

Subpriority a: Noncompensable 0% service-connected veterans who were enrolled in the VA Health Care System on a specified date and who have remained enrolled since that date

Subpriority c: Nonservice-connected veterans who were enrolled in the VA Health Care System on a specified date and who have remained enrolled since that date

Subpriority e: Noncompensable 0% service-connected veterans not included in Subpriority a above

Subpriority g: Nonservice-connected veterans not included in Subpriority c above

Priority Group 8: Veterans who agree to pay specified copayments with income and/or net worth above the VA Means Test threshold and the HUD geographic index

Subpriority a: Noncompensable 0% service-connected veterans enrolled as of January 16, 2003 and who have remained enrolled since that date

Subpriority c: Nonservice-connected veterans enrolled as of January 16, 2003 and who have remained enrolled since that date

Subpriority e: Noncompensable 0% service-connected veterans applying for enrollment after January 16, 2003

Subpriority g: Nonservice-connected veterans applying for enrollment after January 16, 2003