Sears v. Principi ( 2002 )

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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