finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established
How later courts described this case
- finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established
- finding 38 C.F.R. § 3.157 (b) to be "a confusing tapestry" with unclear meaning
Written by the judges who cited it.
The opinion
STEINBERG, Judge,
concurring:
I concur in the Court’s decision and join in the opinion, except with respect to the statement in part II.C. that 38 C.F.R. § 3.157 (b) “allows for the reports” from a medical examination or hospitalization “to serve as ... claims to reopen finalized claims regarding service-connected conditions, presumably in an effort to gain compensation”. I write separately to address 38 C.F.R. § 3.157 (b) and the conflicted language that renders that regulation virtually impossible to apply.
Regulatory § 3.157(b) discusses the circumstances under which, inter alia, a report of examination or hospitalization may serve as an informal claim for an increased rating or an informal claim to reopen. The regulation states, in pertinent part:
(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 com-pensable 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 [VA] or uniformed services ....
(2) Evidence from a private physician or layman....
(3) State and other institutions....
38 C.F.R. § 3.157 (b) (2001) (emphasis added). I find it virtually impossible to divine the meaning of the emphasized words in the context of the seemingly unconnected three sentences in subsection (b).
That part of the Court’s opinion quoted above suggests that there can be a claim to reopen in the case of a claim to gain compensation for a service-connected condition. I find that language quite difficult to follow, but, in fairness, those words appear simply to mirror the “confusing tapestry” of the language of the regulation. Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991); see also Zang v. Brown, 8 Vet.App. 246, 255 (1995) (Steinberg, J., separate views).
The one thing that does appear to be clear about § 3.157(b) is that, as to a disability that has been found to be service connected — whether or not rated as com-pensable — or as to non-service-connected pension that has been awarded, the submission of one of the types of evidence listed in paragraphs (1), (2), or (3) of subsection (b) will constitute an informal claim for increased benefits. 38 C.F.R. *251 § 3.157 (b). Otherwise, however, the regulation contains internal contradictions that render it largely incomprehensible; in my view, this regulation should be near the top of the list for revision, as part of a regulatory review process that, in one form or another, has been underway for some time at the Department of Veterans Affairs (VA), 1 in order to resolve the following issues:
1. What is the meaning of the term “an informal claim to reopen” as used in the first sentence of § 3.157(b) to describe how certain specified evidence might be accepted? This sentence describes three types of claims in which such evidence might be accepted for purposes of “reopening”, but it appears that none of those type of claims could actually be the subject of a claim to reopen. The regulation refers first to “a formal claim for pension or compensation [that] has been allowed”; however, under 38 U.S.C. § 5108 , a claim may be reopened only where “new and material evidence is presented or secured with respect to a claim which has been disallowed”. 38 U.S.C. § 5108 (emphasis added); see also 38 U.S.C. §§ 7104 (b); 7105(c). Therefore, it appears clear that claims that have been allowed are not eligible for reopening. Ibid. Furthermore, as to “a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree”, the Court has held that a claim for a compensable rating for a service-connected condition is a claim for an increased rating and a new claim and is not subject to the requirements, regarding the presentation of new and material evidence, as applicable to claims to reopen. Proscelle v. Derwinski, 2 Vet.App. 629, 631 (1992); see Butts v. Brown, 5 Vet.App. 532, 535 (1993) (en banc). 2 *252 Therefore, it appears that “a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree” may not form the predicate for a claim to reopen, either. 3
2. What is the meaning of the term “informal claim” in the second and third sentences of the regulation; does that phrase refer to an informal claim to reopen, to an informal original claim, or to both?
3. How does the third sentence of § 3.157(b), which points out a circumstance in which the listed evidence will be accepted as “an informal claim” (apparently, as an informal claim to reopen), comport with the first sentence of the regulation? Specifically, the provision made in the third sentence for “informal claim[s] for pension previously denied for the reason [that] the disability was not permanently and totally disabling” describes a completely different situation in pension law from that described in the first sentence relating to claims for pension that have “been allowed”. It appears that the third sentence describes the only circumstance in which the evidence listed in paragraphs (1), (2), and (3) will be accepted as a claim to reopen a claim for pension, but there is no explanation as to how the third sentence relates to the first sentence, which contains the sole such reference in subsection (b) to a “claim to reopen” but appears to relate only to the types of claims described in that first sentence.
In effect, it appears that the Secretary has failed to update this regulation (assuming that it was coherent at one point), which was prescribed initially in 1961 with substantially similar language, 38 C.F.R. § 3.157 (b) (1962), to accord with prece- *253 dential judicial authority. 4 Now would seem an opportune time for the Secretary to review this regulation.
. See Zang v. Brown, 8 Vet.App. 246, 255 (1995) (Steinberg, J., separate views) (listing VA regulations needing "review and reevaluation by the Secretary”).
. The law with regard to the nature of claims for a higher rating evolved quite a while ago to the point where it is routinely considered that such a claim is a claim for an increased rating and is a new claim, and is not a claim to reopen. See, e.g., Spurgeon v. Brown, 10 Vet.App. 194, 196 (1997) ("appellant's claim for an increased rating ... is 'a new claim' ”) (quoting Cox v. Brown, 6 Vet.App. 459, 460 (1994), and citing Butts v. Brown, 5 Vet.App. 532, 535 (1993) (en banc)); Stanton v. Brown, 5 Vet.App. 563, 565 (1993) ("claim for increased evaluation ... is a new claim”) (citing, inter alia, Proscelle, infra); Suttmann v. Brown, 5 Vet.App. 127, 137 (1993) (holding that "a repeat claim for a ... rating [of total disability based on individual unemployability], where a similar claim has been previously and finally denied, should be viewed as a new claim” and that the same "applies to claims for service connection for the [former prisoner of war (POW)] ... diseases listed in 38 U.S.C.n § 1112(b) and 38 C.F.R. § 3.309 (c) ... [, which provide that] any listed ... disease becoming manifest to a degree of 10% or more in a former POW at any time after separation from service " will be awarded disability compensation); Lenderman v. Principi, 3 Vet.App. 491, 492 (1992) (characterizing Proscelle v. Derwinski, 2 Vet.App. 629 (1992), as holding "that a claim for an increase is a new claim, and, therefore, [is] not subject to the provisions [that] require that an appellant submit new and material evidence before a claim will be reopened”). However, the first case to make this holding not only, as stated in the text above, involved a claim for a compensable rating for a zero-rated service-connected disability, but also based its conclusion that such a claim was not a claim to reopen on the concept that "because the claimant's entitlement to benefits could be predicated on a finding that the service-connected disability had increased since the prior denial, ... the claim was based upon facts different from the prior final claim.” Sutt-mann, 5 Vet.App. at 136 (describing holding of Proscelle, supra). In Proscelle itself, the Court had explained that "because the veteran claims that his service-connected disability has undergone an increase in severity since that prior claim ... [, t]he current claim is thus a new claim.” Proscelle, 2 Vet.App. at 631 . At this point, the proposition in the text above appears to be accepted as a truism *252 without regard to whether a veteran actually asserts that his or her service-connected disability has increased in severity since last rated by VA, a factor neither discussed nor apparently present in Spurgeon, Stanton, or Lenderman , all supra. For example, in a brief filed in this Court on April 12, 2002, the Secretary asserted, without any qualification, citing Spurgeon and Proscelle , both supra: "A claim for an increase is a new claim.” Secretary's Brief at 11, Acton v. Principi, U.S. Vet.App. No. 01-0564 (Notice of Appeal filed March 28, 2001). Prior to November 9, 2000, when the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat.2096 (Nov. 9, 2000) (VCAA), was enacted, the principal difference between an original claim and a claim to reopen pertained to the Secretary’s duty to assist and the lesser applicability of that duty to a claim to reopen. That distinction is maintained in at least one major respect in the regulations issued on August 29, 2001, implementing the VCAA; in those regulations, as to claims to reopen, a VA medical examination will be provided "only if new and material evidence is presented or secured.” 66 Fed.Reg. 45,620, 45,631 (Aug. 29, 2001) (amending 38 C.F.R. § 3.159 (c)(4)(iii)).
. It appears that, at the time that the Secretary promulgated § 3.157(b) in 1961, he may have considered that claims for disability compensation were "disallowed” when service connection was found but a compensable rating was denied. That is because until 1993 the Rating Schedule did not provide for a zero-percent rating for every disability for which the applicable diagnostic code did not specifically include a zero-percent rating. In 1993, 38 C.F.R. § 4.31 was amended to provide, just as it does today ( 38 C.F.R. § 4.31 (2001)), as follows:
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.
38 C.F.R. § 4.31 (1993) (amending former regulation, which first appeared in title 38 of the Code of Federal Regulations in 1965 and provided for "a no-percent evaluation ... when the required residuals are not shown”, 38 C.F.R. § 4.31 (1992)); see Rabideau v. Derwinski, 2 Vet.App. 141, 143 (concluding that because "the schedular criteria for hypertension do not require residuals, a zero-percent rating would not be authorized under ... [38 C.F.R. § ] 4.31”).
. See supra note 2.