Why did VA remove 38 CFR 3.157

[pacmanx1]

I can still find this but I do not understand why VA has removed this from the rest of the regulation.  Yes, I know and understand that a veteran can also use 38 CFR 3.156 but they (the veteran) can really show VA that they missed their own medical records with 38 CFR 3.157.

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]

Edited May 11, 2016 by pacmanx1

[Vync]

It sounds like a sneaky way to trim out rules which they deem pro-veteran

[broncovet]

Good point, Pete!

I think the VA posits that the Veteran must "show intent" to file, by filling out an "Intent to file" form. Its another way to trap Vets to save money.   You see, the Vet is presumed to be seeking TREATMENT, not benefits, when he goes to the doc or hospital, and the laws say he has to "show intent" to file a claim for benefits.  The VA paid out to much retro from 3.157, and they came up with the Intent to file form.  VA execs probably got bonuses over that reduction in Vets benefits.    

The VA "completely overlooks" the very real possibility that the VEt goes to the doc for BOTH treatment and benefits, and makes the assumption that any Veteran going to the doc is a liar, trying to hornswaggle the VA out of benefits he does not deserve, by faking an illness to his doc.  Its maddening.  I dont dispute that some Vets have gamed the system, but I object to being treated like a criminal for crimes committed by others.  

Edited March 30, 2016 by broncovet

[Vync]

There may be a workaround to VA hornswaggling...

§3.157 only states "CLAIM", but does not specifically describe what kind of claim in this section...

Quote

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

§3.160 describes what constitutes a claim, but let's take a closer look at (a) Informal claim...

Quote

§ 3.160 Status of claims.

The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation.

(a) Informal claim. See § 3.155.

(b) Original claim. An initial formal application on a form prescribed by the Secretary. (See §§ 3.151, 3.152).

(c) Pending claim. An application, formal or informal, which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§ 20.1103 and 20.1104 of this chapter.)

(e) Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in § 20.1304(b)(1) of this chapter.

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

(f) Claim for increase. Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued.

 

§ 3.155 (a) provides more details about "intent to file" and the one year window, but there is some very specific criteria that the VA may selectively or ignorantly overlook...

Quote

§ 3.155 Informal claims.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

(c) When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim.

 

And Espiritu v. Derwinski adds some protective value from the veteran's perspective...

Quote

While an individual may be able to provide accurate statements regarding firsthand knowledge of events or observations, a lay person may not offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet.App. 492 (1992)

 

Rolling all of that together, there might be a chance the veteran could overcome the restrictive nature of §3.157:

It sounds like §3.155 (a) affords the veteran rights to verbally initiate an informal claim with their VAMC doctor. It might be something as simple as, "Hey doc, my knee really hurts. Can you check it out because I am planning to file for service connected benefits for it?"

In my opinion, based on §3.155 (a), that simple verbal request should be sufficient to justify an informal claim. Additionally, §3.155 (a) puts makes it the VA's responsibility to send an application form to the veteran and after it is received, the veteran has a year to respond for EED protection.

What happens if the VA never sends the application form to the veteran? Does that mean the informal claim EED clock is still ticking?

In my opinion, Espiritu v. Derwinski affords the veteran the ability to justify firsthand facts:
- Any communication: Verbal intent to file with the doc
- Explained benefit sought: Seeking SC disability benefits
- §3.155 (a) requires the VA to send him an application form
- The application form was never received

Would this be plausible?

What ways do you think the VA might try to deny an EED based on this argument?

What about new conditions diagnosed during a C&P exam? (these exams are not for treatment)

[broncovet]

The "intent to file" form eliminates all that.  The VA made it clear:  If you "intend to file" then you have to file an "intent to file" form.  

A claim has to be filed "in writing", the Veteran must specifiy the benefit sought, and the Veteran must show an "intent to file."  

The mandated "intent to file" form virtually Kills 3.157, because we can go to the doctor or hospital declare we want benefits for this or that, and the doc can even note that in our medical records:

"Veteran has indicated an intent to file for service connection of his back condition", but that wont matter until/unless he files the applicable "intent to file form".  

[Vync]

It sounds like the VA has some conflicting rules happening. I would have hoped that liberalizing laws would have tilted the scales in the veteran's favor?

Which CFR is behind the intent to file form?

[Guest]

VYNC and BRONCO, thanks I am not sure when it began but I think the time for the ITF was sometime around March 2015 in reference to the OP(Original Post) I am referring to claims prior to the ITF (Intent to File) timeline and when a veteran actually files a hand/typed written formal claim and all the evidence is ignored and never, I mean  "NEVER" is adjudicated by any rating decision.  This is the very reason why veterans must review and understand their rating decisions and call VA on all their cr*p. I don't know how all this was missed.  Thank GOD the veteran has an open appeal and hopefully they (VA) can sort all this mess out.