Informal Claims And Inferred Claims
Informal claims and the processes under which they may be pursued are defined in 38 CFR 3.155, 3.157 and 3.159. Informal claims are an opportunity for the claimant to establish or protect an earlier effective date of a disability benefit claim than would otherwise be possible through the routine submission of a formal claim.
Informal claim: Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant ….
“Any communication..” can be defined as: • A statement from a PofA • A statement from a Member of Congress • A statement from a person as “next friend” • A “claim” from the veteran not on a proper VA form • An unsigned application from the veteran
Informal claim: …must identify the benefit sought. The communication must also provide enough information to identify the claimant as a veteran….
A communication received by the VA from an accredited VSO intended as an informal claim before the VA receives a signed PofA does not constitute a claim. The person who submitted the statement will be notified that the claim is unacceptable unless: • A VA Form 21-22 is received • An application is received from the claimant • The VA will not contact the veteran or create a pending action.
A communication received by the VA from a person acting as “next friend” intended as an informal claim does not constitute a claim. The person who submitted the statement will be notified that the claim is unacceptable unless: • Evidence is received from the court that the veteran is legally incapacitated • An application is received from the claimant • The VA will not contact the veteran or create a pending action.
Under VA rules the VA does not recognize the authority of an individual named by the veteran via a general or durable Power of Attorney under State Law.
Upon receipt of an unsigned application from the veteran the VA will: • Make a copy of the application • Return the original to the veteran • Instruct the veteran to sign and return within one year • VA will create a pending action but not a pending claim. • VA will not begin development.
Upon receipt of a claim from the veteran but not on the prescribed form or by telephone the VA will: • Forward the proper form to the veteran • Instruct the veteran that the completed application must be received by the VA within one year • The VA will create a pending action but not a pending claim control.
Upon receipt of a signed but incomplete application the VA will: • Make a copy of the application • Check in red on the original the incomplete items • Return the original to the veteran • Identify any additional evidence needed based on the information provided • Instruct the veteran to complete and return within one year • The VA will create a pending action but not a pending-issue control.
All of the above scenarios which constitute an informal claim require some future action by the veteran to make the claim “formal”. The filing of the informal notice with the VA via one of the above methods serves to establish an effective date of some future award but does not trigger VA Duty to Assist.
Another type of informal claim is when the veteran is hospitalized in an Uniformed Services Hospital for a recognized service connected disability. Upon VA receipt of VA Form 21-8358 from the admitting hospital the file will be reviewed and if the admitting diagnosis is a service connected disability the date of admission will be accepted as a date of claim and the VA will establish and maintain control as a pending issue.
Even thou there is an established policy of VA notification by the Uniformed Services it is important to remind veterans that in all cases it is their responsibility to ensure that the VA is informed of treatment for and changes in their service connected conditions.
Another type of informal claim is when the veteran is hospitalized or examined (treated) in a VA Medical Center for a recognized service connected disability. The date of hospitalization or treatment will be considered an informal claim for the purposes of an effective date if a claim is received by the VA within one year of the date of treatment. Upon receipt of a claim the VA will establish control as a pending issue.
There is presently no procedure in place for formal notification to the VA RB from a VAMC of hospitalization or treatment of a service connected disability. Notification of VAMC treatment is the veteran’s responsibility.
VAMC treatment of a non-service connected but presumptive disability does not constitute an informal claim. This is a very real issue which has been the subject of VSO National Resolution for the last several years for Congressional amendment of CFR 3.157. Do not confuse this limitation with provisions of NEHMER, 38 CRR 3.816.
Inferred claims are not specifically covered in the CFR except in the general concept of evaluating disabilities. The procedures to address inferred claims are contained in the VA Manual, M21-1MR, Part III, subpart iv, Chapter 6, Section B, pages 1-8.
“When preparing a decision, the RVSR must recognize, develop, and / or decide all issues, whether: • Expressly claimed • Implied • Informal • Potential • Mandated, or • Ambiguous.”
An inferred issue is derived from the consideration or out come of related issues. Often the primary and inferred issues share the same fact pattern (evidence).
An informal or formal communication to the VA on one issue may provide information that must be accepted and developed by the RVSR as an inferred claim on a related or ancillary issue.
The RVSR should infer an issue only when the evidence demonstrates that entitlement can be granted. The RVSR should not an infer an issue merely to formally deny it.
Exceptions: • The RVSR must consider inferred issues of: • 38 CFR 3.324 (10% rating for multiple zeros) • Service connection for hypertension secondary to diabetes mellitus with diabetic nephropathy
Potential inferred issues: • Chapter 35 (DEA) entitlement • SMC for loss of use • SMC paragraph “S” (100% plus 60%) • A&A in pension cases • Retroactive benefits under 38 CFR 3.400(b)(1)(ii)(B) • Entitlement to treatment under 38 USC 1702 • DIC upon receipt of death pension claim • SAH and SHA in cases with certain SMCs • Auto adaptive equipment in cases with certain SMCs
Some inferred issues as inferred by the RVSR may be included in the immediate decision because they do share the same fact pattern, other issues may require additional development, others may require that the RVSR “invite” a formal claim from the veteran.
Example: During a C&P examination for increased evaluation of the Vietnam veteran’s service connected PTSD he provides recent medical history that he has recently been diagnosed with type II Diabetes Mellitus.
By definition informal claims establish effective dates, inferred issues may not. Effective dates based on informal claims are appealable. Except in rare situations the failure of the RVSR to consider an inferred issue is not appealable. Better that they are dealt with as request for reconsideration based on facts presented.
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