Thursday, January 16, 2014

Pacheco v. Shinseki

Pacheco v. Shinseki, 26 Vet.App. 413 (Jan. 16, 2014)
“[A]s long as a pension claim previously has been allowed as required in [38 C.F.R.] § 3.157(b), a VA examination report will constitute the requisite informal claim for increase or reopening for service connection disability compensation benefits under § 3.157(b)(1), irrespective of whether any disability identified in the original pension claim relates to the same condition as the more recent examination report.” 26 Vet.App. at 417 (emphasis added).

World War II veteran applied for VA disability compensation and pension benefits in 1974. Because the veteran’s service records had been destroyed, VA was unable to corroborate his allegation of in-service injury and denied disability compensation. VA did, however, award pension benefits. Several years later, the veteran filed a request to reopen. VA was able to locate some service records, but continued to deny his claim, and also denied pension because his income was now too high. The veteran continued to submit requests to reopen, and was eventually awarded disability compensation benefits in 2002, effective as of the date he submitted his most recent request. He appealed the assignment of the effective date under 38 C.F.R. §§ 3.157(b) and 3.156(c).

The Court held that because his pension claim had been previously allowed, he met the threshold requirement of § 3.157(b), which states that “[o]nce a formal claim for pension . . . has been allowed . . . , receipt of [VA medical report] will be accepted as an informal claim for increased benefits or an informal claim to reopen.” 26 Vet.App. at 416. The Court also noted that the regulation does not “explicitly require that an original pension claim relate to the same condition as the recent VA examination report,” although in this case the veteran’s claims and VA medical report were for the same disabilities. Id. at 417. The Court reversed the Board’s decision, finding that the veteran was entitled to a May 2001 effective date, the date of the VA medical report. The Court also remanded the case to the Board to consider, in the first instance, the applicability of § 3.156(c), based on VA’s receipt of service records.

No comments:

Post a Comment