Historical Guidance on the Assignment of Effective Dates

Overview

In This Section

This section contains the following topics:

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1. Effective Dates Based on Historical 38 CFR 3.157

Introduction

This topic includes information explaining the historical relevance of and clarifying the principles for determining effective dates under historical 38 CFR 3.157, including

• applicability of 38 CFR 3.157
• effective dates for claims under 38 CFR 3.157
• continuing impact of 38 CFR 3.157 on the Department of Veterans Affairs (VA) or uniformed service facility records, and
• holdings and opinions relevant to application of 38 CFR 3.157(b)(1).

Change Date

September 22, 2017

V.ii.4.B.1.a. Applicability of 38 CFR 3.157

38 CFR 3.157 is a historical regulation that provided that evidence of examination or hospitalization may be accepted as an informal claim for increase or to reopen.

• This regulation was eliminated on March 24, 2015, in association with the Standards Claims and Appeals Forms Rule.
• However, 38 CFR 3.157 applies, with multiple revisions dating back to 1933, until its 2015 elimination. Thus, Department of Veterans Affairs (VA) or uniformed service health care facility records dating within that time period continue to be potential informal claims for increase or to reopen without regard to when those records are incorporated into a claims folder. The correct assignment of effective dates is contingent on properly recognizing these informal claims.

Reference: For more information on i nformal claims accepted under 38 CFR 3.157, see M21-1, Part II, Subpart iii, 2.H.1.

V.ii.4.B.1.b. Effective Dates for Claims Under 38 CFR 3.157

As assignment of effective date is often determined by the date of receipt of a claim, it is important to understand that 38 CFR 3.157 was a rule that defined what may be accepted as an informal claim as well as when the claim is considered received.

Particularly, 38 CFR 3.157 directed that informal claims based on receipt of

• reports of examination or hospitalization at a VA or uniformed services facility are considered received as of the
• date of the outpatient or hospital examination, or
• date of hospital admission, and
• records showing evidence of entitlement submitted by or on behalf of a Veteran from a private physician or layman or from state or other institutions are considered received as of the date of receipt of the evidence.

The following types of informal claims may result from receipt of reports of examination or hospitalization under 38 CFR 3.157:

• a claim for increased compensation, including when the
• Veteran has elected to received military retired pay in lieu of compensation, or
• service-connected (SC) disabilities are evaluated as non-compensable
• a claim for increased pension benefits (including when the Veteran has elected to received military retired pay in lieu of pension), and
• a claim to reopen pension following denial resulting from a finding that the disability was not permanently and totally disabling.

V.ii.4.B.1.c. Continuing Impact of 38 CFR 3.157 on VA or Uniformed Service Facility Records

Although 38 CFR 3.157 was removed, it continues to have the potential to impact claims processing and assignment of effective dates.

Its continued effect means, in part, that any report of examination or hospitalization from a VA or uniformed services facility dated prior to March 24, 2015, without regard to the date the evidence is incorporated in the claims folder, may potentially be accepted as an informal claim if the requirements as described in the regulation and within this topic are otherwise satisfied.

Example: A Veteran submitted a claim for increased evaluation of his SC diabetes on July 14, 2016. The diabetes was evaluated as 10-percent disabling at the time the claim was received. The resultant VA examination, dated September 22, 2016, revealed that the Veteran was following a diabetic diet and using an oral medication to treat the diabetes. VA treatment records, incorporated into the claims folder on August 15, 2016, confirmed that the Veteran was first prescribed Metformin on February 12, 2014.

Analysis: Since the VA treatment records showing the increased symptomatology of the SC disability via prescription of Metformin are dated prior to March 24, 2015, they must be accepted as an informal claim for increase in the diabetes. The claim is considered received on the date of the outpatient examination in which the increase was shown. Thus, the proper effective date for the increased evaluation from 10 to 20 percent for the SC diabetes is February 12, 2014, the date of receipt of the informal claim.

V.ii.4.B.1.d. Holdings and Opinions Relevant to Application of 38 CFR 3.157(b)(1)

The following court holdings and General Counsel opinion clarify the applicability of 38 CFR 3.157(b)(1).

• In MacPhee v. Nicholson, 439 F.3d 1323 (2006), the U.S. Court of Appeals for the Federal Circuit held that although the language of 38 CFR 3.157(b)(1) refers to claims to reopen, in this case the claim to reopen is limited in scope for compensation purposes to those disabilities for which SC has already been established. Medical reports concerning a disability for which SC has not been granted cannot be used to trigger application of 38 CFR 3.157(b)(1).
• In Massie v. Shinseski, 724 F.3d 1325 (2013), the U.S. Court of Appeals for the Federal Circuit made the following findings:
• A physician’s letter does not qualify as a report of examination under 38 CFR 3.157(b)(1) because it was not generated in connection with any particular VA medical examination. The medical record in question must describe the results of a specific, identifiable VA or uniform service facility outpatient or hospital examination.
• For 38 CFR 3.157(b)(1) to be considered an informal claim, the report of examination or hospitalization must demonstrate that the Veteran’s SC disability worsened since the time it was last evaluated for rating purposes.
• In Munro v. Shinseki, 616 F.3d 1293 (2010), the U.S. Court of Appeals for the Federal Circuit found that 38 CFR 3.157(b) establishes that evidence such as VA medical reports be accepted as informal claims for increased compensation, not that informal claims require separate consideration from formal claims. Furthermore, it is not necessary for VA to address every one of these informal claims separately. The implicit denial rule may be applied to terminate the pending status of both formal and informal claims.
• In Pacheco v. Gibson, 27 Vet.App. 21 (2014), the Court of Appeals for Veterans Claims held that a previous allowance of non-service-connected (NSC) pension cannot result in an earlier effective date under 38 CFR 3.157(b)(1) for a claim to reopen a previously denied claim for SC. Rather, a previous allowance of NSC pension can result in an earlier effective date for an increased pension claim or a claim to reopen a pension claim previously denied because the disability was not permanently and totally disabling.
• In VAOPGCPREC 5-2003, General Counsel found that the provision of 38 CFR 3.157(b)(1) stating that the date of admission to a uniform services hospital will be accepted as the date of receipt of a claim for increased benefits is applicable to Veterans hospitalized in private facilities at Department of Defense expense under the TRICARE program.

2. Effective Dates Based on Historical 38 CFR 3.155

Introduction

This topic includes information clarifying the principles for determining effective dates under historical 38 CFR 3.155, including the applicability of

• informal claims, and
• 38 CFR 3.114 to informal claims.

Change Date

September 22, 2017

V.ii.4.B.2.a. Applicability of Informal Claims

Informal claims were authorized under 38 CFR 3.155 prior to March 24, 2015. Although the Standard Claims and Appeals Rule revised 38 CFR 3.155 and eliminated provisions for acceptance of informal claims, informal claims may still apply when received prior to March 24, 2015. Recognizing informal claims is important in the proper assignment of effective dates as well as in understanding historical entitlement decisions.

Notes:

• There was no standard form for submission of an informal claim.
• Upon receipt of an informal claim, if no prior formal claim had been filed, the applicant was forwarded an application for benefits. The applicant had one year from the date the application was sent to formalize the claim. When formalized within the one-year period, the claim was considered filed as of the date of receipt of the informal claim.
• Informal claims for increase or reopening were accepted as claims.

References: For more information on the

• historical criteria for informal claims, see
• historical 38 CFR 3.155, and
• M21-1, Part II, Subpart iii, 2.H.1, and
• impact of an electronic application initiation date on an effective date determination, see M21-1, Part V, Subpart ii, 4.A.2.a.

V.ii.4.B.2.b. Applicability of 38 CFR 3.114 to Informal Claims

When 38 CFR 3.114 applies to a disability claim and an informal claim was received prior to March 24, 2015, apply 38 CFR 3.114 based on date of receipt of the informal claim. Under the historical 38 CFR 3.155, the claim is considered received as of the date of receipt of the informal claim.