Mr. Pacheco served in the U.S. Army from January 1942 to November 1945 in the Pacific Theater. During combat service in 1942, he took cover in a fox hole while his base was taking fire and injured his right hip and knee when fellow soldiers jumped into the hole and landed on him. This led to the later case decision of Pacheco v. Shinseki and their effects on effective dates.
In an application VA received on February 28, 1974, Mr. Pacheco sought VA benefits based on service connection for his injuries but was denied. However, he was awarded nonservice-connected pension benefits.
In October 1977, Mr. Pacheco again filed for benefits based on his right leg disability. In February 1978, VA located service department records-morning reports-from Mr. Pacheco’s military units, which indicated that he had been hospitalized and “taken sick” several times during 1943. However, VA once again denied service-connection benefits because the morning reports did not specify any diagnosis for Mr. Pacheco’s hospitalization or sickness.
Mr. Pacheco attempted to reopen his claim based on his leg and hip injuries again in April 1982, October 1988, February 1989, and September 1995. VA rejected the claims each time. On May 11, 2001, a VA physician assistant examined the veteran and noted that he had severe degenerative joint disease that was probably post traumatic. Based on that statement, on January 23, 2002, Mr. Pacheco submitted to VA a letter which VA construed as a request to reopen his previously denied claim.
Although the adjudication of his 2002 claim went through several stages, VA eventually granted him service connection for residuals from injury, total right hip replacement(claimed as right hip (leg) disorder), and pelvic asymmetry producing a mechanical short left leg, at ratings of 90 percent and 10 percent, respectively, and dependents’ educational assistance (DEA) and special monthly compensation (SMC).
In August 2005, VA set the effective date to January 23, 2002, the date it received Mr. Pacheco’s letter seeking to reopen his claim. Mr. Pacheco sought an earlier effective date in an appeal to the Board, but the Board denied his claim. The Court of Appeals for Veterans Claims held otherwise.
Under 3.157(b), once a formal claim for pension has been allowed, certain hospital admissions or examinations will be accepted as informal claims for increased benefits or to reopen. 38 C.F.R. § 3.157(b). Since Mr. Pacheco had been granted pension in 1974, his May 2001 examination qualified as an informal claim for benefits. The Court held it did not matter whether his pension claim in 1974 specified a particular disability.
Under 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. This only relates to disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Since Mr. Pacheco filed a claim January 23, 2002, which is within a year of his May 11, 2001 examination, the latter date is accepted as the date of claim.
Therefore, under these circumstances Mr. Pacheco was entitled to an earlier effective date under 38 C.F.R. § 3.157(b) and (b)(1).
If you or somebody you know is having trouble with a VA appeal, contact the experienced attorneys at Berry Law Firm today at (888) 883-2483 for a free consultation.
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