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.
QUESTIONS ON
INFORMAL
CLAIMS?
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.
QUESTIONS ON
INFERRED ISSUE
CLAIMS?
Update on Appeals
Numbers
NOD issues
DRO Personal Hearings
Form 9 issues
BVA Personal Hearings
BVA Remands
BVA decision reviews
Representation issues
QUESTIONS ON
APPEALS?