Sears v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 99-1390

MARIAN SEARS, APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF APPELLANTS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided August 20, 2002 )

Kenneth M. Carpenter, of Topeka, Kansas, was on the pleadings for the appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Joan E.

Moriarty, Deputy Assistant General Counsel; and Patricia Trujillo, all of Washington, D.C., were

on the pleading for the appellee.

Before HOLDAWAY, IVERS, and STEINBERG, Judges.

IVERS, Judge, filed the opinion of the Court. STEINBERG, Judge, filed a concurring

opinion.

IVERS, Judge: Veteran Virgil G. Lawton, through his legal custodian, the appellant, Marian

Sears, appeals a May 25, 1999, decision of the Board of Veterans' Appeals (BVA or Board), which

denied an effective date earlier than October 26, 1995, for service connection for post-traumatic

stress disorder (PTSD). The May 1999 BVA decision remanded the matter of service connection

for a skin disorder, and that part of the decision has not been raised to the Court on this appeal.

Pursuant to 38 U.S.C. § 7252(a), the Court has jurisdiction to consider the current appeal, which has

been timely filed. For the reasons set forth below, the Court will affirm the Board's May 1999

decision.

I. FACTS

The veteran served in the U.S. Army from July 1968 to July 1971, including service in

Vietnam. Record (R.) at 15. After the veteran filed his first claim for service connection for PTSD

in April 1988 (R. at 90-93), he was diagnosed with the disorder in May 1988 (R. at 103). A

September 21, 1988,VA regional office (RO) decision denied the veteran's claim; a September 7,

1990, BVA decision sustained that denial. R. at 138-39, 163-67. In February 1994, the veteran had

a routine VA mental disorders examination, the report of which stated that he was "not competent"

for VA pension purposes. R. at 174-79. At that time, the veteran was again diagnosed with PTSD.

R. at 178. In April 1995, the veteran received care and treatment for PTSD at a VA mental health

clinic. R. at 181-85.

On October 26, 1995, the veteran sought to reopen his previously and finally disallowed

claim for service connection for PTSD. R. at 187-90. A VA regional office (RO) decision dated

August 11, 1997, granted service connection for PTSD, evaluated as 100% disabling, effective on

the date of the veteran's October 1995 claim . R. at 315-17. The veteran disagreed with the effective

date of the award; he asked "that compensation be granted retroactively from the incurrence of the

PTSD [c]ondition." R. at 322.

In the BVA decision presently on appeal, the Board found that because a September 1988

RO decision had denied service connection for PTSD (R. at 138-39), and a September 1990 BVA

decision had affirmed that denial (R. at 163-67), that decision had become final, and, therefore, an

effective date prior to September 1990 was not warranted. R. at 3. The Board concluded that an

effective date prior to October 26, 1995, the date that the veteran filed his claim to reopen, was not

warranted for the veteran's reopened claim for service connection for PTSD. R. at 4. With respect

to the February 1994 medical examination report that diagnosed PTSD, and the April 1995 evidence

of VA treatment for PTSD, the Board stated:

[N]either of the foregoing reports served to comprise an informal

claim for service connection for [PTSD] in accordance with the

provisions of 38 C.F.R. § 3.157(b) (1998) inasmuch as such provision

only pertains to a circumstance not incident to this aspect of the

appeal, i.e., a situation in which a prior disallowance of compensation

involved a service-connected condition which was not compensable

in degree.

2

R. at 9.

II. ANALYSIS

A Board determination of the proper effective date is a finding of fact. See Lalonde v. West,

12 Vet.App. 377, 380 (1999); Hanson v. Brown, 9 Vet.App. 29, 32 (1996). The Court reviews

questions of fact using the "clearly erroneous" standard of review. Gilbert v. Derwinski, 1 Vet.App.

49, 53 (1990); 38 U.S.C. § 7261(a)(4). In determining whether a finding is clearly erroneous, "this

Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if

there is a 'plausible basis' in the record for the factual determinations of the BVA . . . [ the Court]

cannot overturn them." Gilbert, 1 Vet.App. 53.

Generally,

the effective date of an award based on an original claim, a claim

reopened after final adjudication, or a claim for increase, of

compensation, dependency and indemnity compensation, or pension,

shall be fixed in accordance with the facts found, but shall not be

earlier than the date of receipt of application therefor.

38 U.S.C. § 5110(a). The VA regulation concerning the effective date for a reopened claim, 38

C.F.R. § 3.400(q), provides that the effective date for an award of benefits based upon new and

material evidence, other than evidence from service department records, that was received after final

disallowance of a claim is the "[d]ate of receipt of [the] new claim or [the] date entitlement arose,

whichever is later." 38 C.F.R. § 3.400(q)(1)(ii) (2001).

A.

The appellant does not assert that the Board's determination of the proper effective date was

"clearly erroneous." See Lalonde, supra. Instead, in her brief for this appeal, the appellant urges the

Court to interpret 38 U.S.C. § 5110(a) to find that the effective date of a reopened claim should be

the date of the original claim, not the date of the application to reopen that claim after a prior, final

adjudication. To that end, she argues that 38 C.F.R. § 3.400(q)(1)(ii) is inconsistent with the plain

meaning of section 5110(a), and with 38 U.S.C. § 5108 (Reopening Disallowed Claims), because

the regulatory provision uses the terminology "new claim." Appellant's Brief (Br.) at 5-14; Reply

Br. at 2.

3

The appellant's argument lacks merit, and seeks an interpretation that, although favorable to

the veteran in the present matter, would convolute the plain meaning of the statutory and regulatory

scheme for determining effective dates. The generally applicable parts of the effective-date statute

and regulation delineate three types of "claims": (1) An original claim, (2) a claim reopened after

final disallowance, and (3) a claim for an increase in benefits. See 38 U.S.C. § 5110(a); 38 C.F.R.

§ 3.400. The use of the term "new claim" in 38 C.F.R. § 3.400(q)(1)(ii) refers to the second of the

three types of claims to which the regulation and statute are generally applicable, i.e., a claim

reopened after final disallowance. See 38 C.F.R. § 3.400(q)(1)(ii) (part of the regulation governing

effective dates that applies when new and material evidence is received after final disallowance of

a claim). Furthermore, there is no support in the law for the appellant's position that the Court

should read section 5110(a)'s mandate that the effective date for a reopened claim "shall not be

earlier than the date of receipt of application therefor" as referring to the date of receipt of the

original claim rather than the claim to reopen. See Wright v. Gober, 10 Vet.App. 343, 345-47

(1997). In Wright, the Court held that the words "application therefor" in section 5110(b) "means

the application that resulted in the award of disability compensation currently under review for an

effective date", id. at 347; the same rationale applies as to section 5110(a).

The Court also rejects the appellant's assertion that, "by its very nature, a claim for reopening

overcomes the finality of the previously denied claim because it requires a thorough review of the

former disposition of the original claim." Appellant's Br. at 6. In urging that the regulatory

provision found at 38 C.F.R. § 3.400(q)(1)(ii) is invalid, the appellant would have the Court overturn

its body of precedential law that upholds the interpretation of the relevant language of 38 U.S.C.

§ 5110(a) to mean that an award granted on a reopened claim will be effective no earlier than the

date that the claim for reopening was filed. See Appellant's Br. at 9 (citing Flash v. Brown,

8 Vet.App. 332, 340 (1995); Lapier v. Brown, 5 Vet.App. 215, 216-17 (1993); Spencer v. Brown,

4 Vet.App. 283, 293 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994); Rowell v. Principi, 4 Vet.App. 9,

14 (1993).

In Spencer, supra, the Court provided an in-depth analysis of the validity of the requirement

that the Secretary adjudicate a previously and finally denied claim upon receipt of new and material

4

evidence relative to the claim. Spencer, 4 Vet.App. at 290-97. In the context of that analysis, the

Court stated the following:

[I]t is made clear [by 38 U.S.C. § 5110(a)] that such "reopening" will

not have retroactive effect relating back to the original claim but will

have the attributes of a new claim with regard to effective date.

Although, as noted in subpart iii., above, the use of "reopening" in

prior statutory provisions may have connoted only adjudication of a

finally denied claim on the basis of the original application, with any

award being retroactive to the date of that application, the use of that

term in [§ 5110(a)] since 1962 and in § 5108 pursuant to the VJRA

makes clear that "reopening" now refers as well to claims based on

new and material evidence from sources other than service

department reports; in essence, such claims are treated as new claims.

Id. at 297. The Court thus holds that the effective-date statute, 38 U.S.C. § 5110(a), is clear on its

face with respect to granting an effective date for an award of VA periodic monetary benefits no

earlier than the date that the claim for reopening was filed.

The appellant's argument that 38 U.S.C. § 5108 precludes considering a reopened claim to

be a "new claim" does not support her contention regarding effective dates for awards based upon

reopened claims. The reopening of a claim is an exception to the rule of finality stated in 38 U.S.C.

§ 7104(b) (Jurisdiction of the Board). The rule explicitly states: "Except as provided in section 5108

of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and

allowed and a claim based upon the same factual basis may not be considered." 38 U.S.C. §

7104(b); see also 38 U.S.C. § 7105(c) (finality of RO decisions). Section 5108 requires that a claim

that has been disallowed be reopened "[i]f new and material evidence is presented or secured."

38 U.S.C. § 5108; see 38 C.F.R. § 3.156(a) (2001). If the claim is reopened, then a new factual basis

emerges (from the new and material evidence along with the existing evidence), upon which the

reopened claim is to be considered. See Thompson v. Derwinski, 1 Vet.App. 251, 253-54 (1991)

(discussing of rule of finality and new factual basis established by new and material evidence).

This new factual basis renders the reopened claim a "new claim" for purposes of the

effective-date language of 38 C.F.R. § 3.400(q)(1)(ii). Reading the regulatory provision in this

manner is consistent with the statutory framework established by 38 U.S.C. § 7104(b), regarding

jurisdiction and the rule of finality, and 38 U.S.C. § 5110(a), regarding the assignment of effective

5

dates. For purposes of setting effective dates, Congress expressly specified that a claim reopened

after final disallowance is distinct from the original claim that came before it. See 38 U.S.C.

§ 5110(a). Further, Congress expressly prohibited, on jurisdictional grounds, consideration of a

claim that has been finally disallowed by the Board on the same factual basis. See 38 U.S.C. §

7104(b); Barnett v. Brown, 83 F.3d 1380, 1383 (holding that section 7104(b) "means that the Board

does not have jurisdiction to consider a claim which it previously adjudicated unless new and

material evidence is presented, and before the Board may reopen such a claim, it must so find"); see

also 38 U.S.C. § 7105(c).

The statutory framework simply does not allow for the Board to reach back to the date of the

original claim as a possible effective date for an award of service-connected benefits that is

predicated upon a reopened claim. The rule of finality regarding an original claim implies that the

date of that claim is not to be a factor in determining an effective date if the claim is later reopened.

The presence of a reopened claim as one of three types of claims referred to in the effective-date

statute reinforces this interpretation. In light of this harmonious analysis of the relevant statutes and

the regulation, the Court holds that the term "new claim," as it appears at 38 C.F.R. § 3.400(q)(1)(ii),

means a claim to reopen a previously and finally denied claim.

B.

The appellant argues, alternatively, that for purposes of allowing an effective date earlier than

the date of a claim to reopen, the regulatory provision providing effective dates for claims for

increased disability ratings should apply to claims to reopen. Appellant's Br. at 14-18. In making

this argument, the appellant has analogized the duo of claims for increased ratings and claims to

reopen to certain informal claims for increased ratings and claims to reopen.

The appellant points out that 38 C.F.R. § 3.157 treats informal claims for increased ratings

and informal claims to reopen, based upon reports of medical examination or hospitalization, the

same for purposes of determining effective dates. Appellant's Br. at 14-18. She then asserts that the

effective-date provisions of 38 C.F.R. § 3.400(o)(2) (effective dates for increases) should, therefore,

apply to claims to reopen. Id. The appellant contends that because 38 C.F.R. § 3.400(o)(2) provides

that the effective date for an award of benefits based upon a claim for an increased rating can be the

earliest date that it is factually ascertainable that an increase in disability has occurred, an effective

6

date for an award arising from a reopened claim can be the earliest date that it is factually

ascertainable that the condition for which the award is made existed. Id.

The Court will not accept the appellant's apparent invitation to override the limits of the

effective-date provisions presently in the regulations. Regulatory section 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. See 38 C.F.R. § 3.157 (2001); Servello

v. Derwinski, 3 Vet.App. 196, 199 (1992). The specific effective-date provisions of 38 C.F.R. §

3.157 do not supercede or conflict with the effective-date provisions of 38 C.F.R. § 3.400 that are

applicable to claims for increased disability compensation and claims reopened with new and

material evidence. See 38 C.F.R. §§ 3.400 (o)(2) and (q).

Regulatory section 3.400 begins with the following: "General: Except as otherwise

provided, the effective date . . . will be . . . ." 38 C.F.R. § 3.400. Section 3.157 and the subsections

of section 3.400 provide otherwise for effective dates related to the types of claims they respectively

define. See 38 C.F.R. § 3.157 (report of examination or hospitalization accepted as informal claim,

and date of report accepted as date of claim, which date is a determining factor in deciding the

effective date of an award of benefits); 38 C.F.R. § 3.400(o)(2) (effective dates for successful claims

for increases in disability compensation); 38 C.F.R. § 3.400(q) (effective dates for successful claims

reopened with new and material evidence).

The Court holds that it was not erroneous for the Board to conclude that no informal claims

had been filed pursuant to 38 C.F.R. § 3.157. See R. at 9. The Court will not override the relevant

effective-date regulatory provision in this case, 38 C.F.R. § 3.400(q), in favor of extending the

unrelated provision of 38 C.F.R. § 3.400(o)(2).

C.

The final alternative argument advanced by the appellant is that the language of 38 C.F.R.

§ 3.157 prohibits the filing of an informal claim for reopening, contrary to the pro-veteran nature of

the veterans benefits system. Appellant's Br. at 19-25. In making this argument, the appellant

misconstrues that regulation.

7

As discussed above, 38 C.F.R. § 3.157 applies to a quite-specific group of claims for

disability compensation, i.e., those that are considered informal claims on the basis of a submission

of a report from a medical examination or hospitalization. The regulation allows for the reports to

serve as informal claims for increased disability compensation for service-connected conditions, and

as claims to reopen finalized claims regarding service-connected conditions, presumably in an effort

to gain compensation. See Servello , supra. The regulation does not, as alleged by the appellant,

"effectively preclude[ ] informal claims for reopening." Appellant's Br. at 24.

III. CONCLUSION

Accordingly, upon consideration of the record on appeal and the parties' pleadings, and for

the reasons stated herein, the Court holds that the Board's denial of the appellant's request for an

earlier effective date was not "clearly erroneous." See Lalonde, Hanson, and Gilbert, all supra. The

May 25, 1999, BVA decision is AFFIRMED.

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 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

8

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 compensable – 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. § 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

1

See Zang v. Brown, 8 V et.A pp. 246, 2 5 5 (1 995) (S tein b erg, J., separate view s) (listin g V A regu lation s

n eedin g "review an d reevaluation by th e S ecretary").

9

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

2

T h e law w ith regard to th e n atu re of claim s for a h igh er ratin g evolved qu ite a w h ile ago to th e poin t

w h ere it is routin ely considered th at such a claim is a claim for an in creased ratin g and is a new claim , and is n ot

a claim to reopen . See, e.g., Spurgeon v. Brown, 10 V et.A pp. 19 4, 19 6 (19 97 ) ("appellan t's claim fo r an in creased

ratin g . . . is 'a n ew claim '") (quotin g Cox v. Brown, 6 V et.A p p . 459, 460 (1994), an d citin g Butts v. Brown, 5

V et.A pp. 532, 535 (1 993) (en ban c)); Stanton v. Brown, 5 V et.A pp. 563, 565 (1993) ("claim for in creased evaluation

. . . is a n ew claim ") (citin g, in ter alia, Proscelle, infra)); Suttmann v. Brown, 5 V et.A pp. 12 7, 13 7 (19 93 ) (h oldin g th at

"a repeat claim for a . . . ratin g [of total disability based on in dividu al un em ployability], w h ere a sim ilar claim h as

been previously and fin ally denied, sh ould be view ed as a new claim " an d th at th e sam e "applies to claim s for

service con n ection for th e [form er p rison e r of w ar (P O W )] . . . diseases listed in 3 8 U .S.C .[] § 1112(b ) and 38

C .F.R . § 3.309(c) . . . [, w h ich provide th at] an y listed . . . disease becom in g m an ifest to a degree of 10% or m ore

in a form er P O W at an y tim e afte r s e p aratio n fro m s e rvice " w ill be aw arded disability com pen sation ); Lenderman

v. Principi, 3 V et.A pp. 491, 492 (1992) (ch aracterizin g Proscelle v. Derwinski, 2 Vet.App. 629 (1992), as h oldin g "th at

a claim for an in crease is a n ew claim , an d, th erefore, [is] n o t sub ject to th e provision s [th at] require th at an

appellan t subm it n ew an d m aterial eviden ce before a claim w ill be reopen ed"). H ow ever, th e first case to m ake th is

h oldin g not on ly, as stated in th e text above, in volved a claim for a com pen sable ratin g for a zero-rated service-

con n ected d isability, bu t also based its con clusion th at such a claim w as n ot a claim to reopen on th e con cept th at

"because th e claim an t's en titlem en t to ben efits could be predicated on a fin din g th at the service-con n ected disability

h a d increased s in ce th e prior den ial, . . . th e claim w as based upon facts differen t fro m th e prior fin al claim ."

Suttmann, 5 V et.A pp. at 136 (describin g h oldin g of Proscelle, supra). In Proscelle itself, th e C ourt h ad explain ed th at

"b ecause th e veteran claim s th at h is service-con n ected disab ility h as un dergon e an in crease in severity s in ce th at

prior claim . . . [, t]h e curren t claim is th us a n ew claim ." Proscelle, 2 V et.A p p. at 6 31. A t th is poin t, th e

proposition in th e text above appears to be accepted as a truism w ith out regard to w h eth er a veteran actually asserts

th at h is or h er service-con n ected d isability h as in creased in severity sin ce last rated b y V A , a factor n eith er discussed

n or apparen tly presen t in Spurgeon, Stanton, or Lenderman, all supra. For exam ple, in a brief filed in th is C ourt on

A pril 12, 2002, th e S ecretary asserted, w ith ou t an y qualification , citin g Spurgeon and Proscelle, both supra: "A claim

for an in crease is a n ew claim ." S ecretary's B rief at 1 1 , Acton v. Principi, U .S. V et. A pp. N o. 01-0564 (N otice of

A ppeal filed M arch 28 , 20 01 ). P rior to N ovem ber 9, 20 00 , w h en th e Veterans Claims Assistance Act of 2000,

Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), w as en acted, th e prin cipal differen ce betw een an

origin al claim an d a claim to reopen pertain ed to th e S ecretary's du ty to assist an d th e lesser applicability of th at

du ty to a claim to reopen . T h at distin ction is m ain tain ed in at least on e m ajor respect in th e regulation s issued

on A ugust 2 9 , 20 01 , im plem en tin g th e V C A A ; in th ose regulation s, as to claim s to reopen , a V A m edical

exam in ation w ill be provided "on ly if new an d m aterial evid en ce is presen ted or secured ." 66 Fed. Reg. 45,620,

45,631 (Aug. 29, 2001) (amending 38 C.F.R. § 3.159(c)(4)(iii)).

10

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

3

It appears th at, at th e tim e th at th e Secretary prom ulgated § 3.15 7(b) in 19 61 , h e m ay h ave con sidered

th at claim s for disability com pen sation w ere "disallow ed" w h en service con n ection w as foun d but a com pen sable

ratin g w as denied. T h at is because until 1993 th e R atin g Schedule did n ot provide for a zero-percent ratin g for

e ve r y disab ility for w h ich th e ap plicab le d iagn ostic code did not sp ecifically inclu de a zero-p ercent rating. In 1993,

38 C .F.R . § 4.31 w as am en ded to provide, just as it d oes today (3 8 C .F.R . § 4.31 (2 001)), as follow s:

In every in stance w h ere th e sch edule does n ot provide a zero percent evaluation

for a diagn ostic code, a zero percen t evaluation sh all be assign ed w h en th e

requirem en ts for a com pen sable evaluation are n ot m et.

38 C .F.R . § 4 .31 (19 93 ) (am en din g form er regu latio n , w h ich first appeared in title 38 of th e C ode of Federal

R egu lation s in 1965 an d provided for "a n o-percen t evaluation . . . w h en th e req uired residuals are n ot sh ow n ",

38 C .F.R . § 4.31 (1 992)); see Rabideau v. Derwinski, 2 V et.A pp. 14 1, 14 3 (con clud in g th at because "th e sch edu lar

criteria for h yp erten sion d o n ot req u ire resid u als, a zero-p ercent rating w ou ld not b e au thorized u nder . . . [38

C .F.R . §] 4.31").

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language, 38 C.F.R. § 3.157(b) (1962), to accord with precedential judicial authority.4 Now would

seem an opportune time for the Secretary to review this regulation.

4

See supra n ote 2.

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