VA Disability Rating Reasonably Raised by the Record

Did you know the VA is not only required to adjudicate the disability compensation claims a veteran expressly raised – such as a claim for hearing loss – but is also required to adjudicate any claims reasonably raised by the record? For example, if the VA discovers through a hearing examination that the veteran is also suffering from ringing in the ears (tinnitus), VA should treat tinnitus as a claim and properly adjudicate it.

The law requires the VA to “give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations.’” Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir.2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added)). Moreover, “the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant’s substantive appeal, including all documents and oral testimony in the record prior to the Board’s decision.” Brannon v. West, 12 Vet. App. 32, 34 (1998); see also Solomon v. Brown, 6 Vet. App. 396 (1994).

The Board may not ignore or disregard an issue merely because the veteran did not expressly raise the appropriate legal provision which corresponds to the benefits sought. Fanning v. Brown, 4 Vet. App. 225, 229 (1993); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Where a VA regulation is made potentially applicable through the assertions and issues raised in the record, the Board’s refusal to acknowledge and consider that regulation is “arbitrary, capricious, an abuse of discretion, not in accordance with the law,” and must be set aside as such. 38 U.S.C. § 7061(a)(3). Lind v. Shinseki, 06-3637, 2009 WL 159221 (Vet. App. Jan. 23, 2009).

Issues may be “reasonably raised” in several different ways. Some of the most common are informal claims, claims for increase, claims for entitlement to special monthly compensation and claims for entitlement to total disability based on individual unemployability (TDIU).

First, informal claims are claims that have not been formally submitted by a veteran. This means the veteran has not filled out VA Form 21-526 or VA Form 21-4138 in order to submit a claim for disability compensation benefits; however, there are two requirements for an informal claim.

While the law requires VA to give a sympathetic reading to a veteran’s filings by determining all potential claims raised by the evidence, and applying all relevant laws and regulations, nevertheless, it is well settled there must be: 1) an intent to apply for benefits, whether formal or informal; and 2) the intent must be communicated in writing. Criswell v. Nicholson, 20 Vet. App. 501 (2006) (citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006)).

The Criswell Court went on to explain that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See 38 C.F.R. § 3.155(a).

There are some instances, however, where the mere existence of medical records does qualify as an informal claim for purposes of VA disability benefits. According to 38 C.F.R. § 3.157(b), once an informal (or formal claim) has been service connected, medical records alone can be used for evidence of an informal claim for increased VA disability benefits compensation.

Moreover, informal claims for special monthly compensation (SMC) and total disability based on individual unemployability (TDIU) may be made on the basis of evidence in the medical records alone.

To raise an informal claim for TDIU, the veteran must make a claim for the highest rating possible, submit evidence of a medical disability, and VA must possess evidence of unemployability. Robinson v. Nicholson, 23 Vet. App. 317 (2007); see Roberson v. Principi, 251 F.3d 1378, 1384-85 (Fed. Cir. 2001); Norris v. West, 12 Vet. App. 413, 421 (1999) (evidence of unemployability due to a 70% disability rating was sufficient evidence to reasonably raise a TDIU claim).

For example, if Veteran’s VA treatment records include language from the veteran or physician that indicates veteran is unable to work as a result of a service-connected condition, the date of the treatment record may be used as an informal claim for TDIU or as supporting evidence for an earlier effective date for an existing TDIU claim. The same is also true for claims for special monthly compensation.