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12.1. Increasing VA Ratings
An increased-rating claim is the same as a claim for increased benefits and the terms are used interchangeably throughout the caselaw addressing VA disability compensation. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 96 (2010). A claim for an increased disability rating is a new claim, and the Board's determination of whether a claimant is entitled to an increase in a schedular disability rating is a question of fact subject to the "clearly erroneous" standard of review in the Court. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Cox v. Brown, 6 Vet. App. 459, 460 (1994). The Court has consistently held that, in an increased rating claim, the relevant issue is the appellant's current level of disability. See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
In VazquezFlores II, the Federal Circuit addressed: (1) Whether section 5103(a) requires the Secretary to provide a veteran seeking an increased rating with the relevant rating criteria under every DC potentially applicable to the veteran's present disability; and (2) whether the Secretary must consider the effect of the worsening of a service-connected disability upon the veteran's daily life. 580 F.3d at 1275. The Federal Circuit held that reference to DCs is not required because generic notice in response to a particular type of claima claim for an increased ratingis all that is required under Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007) (holding that section 5103(a) requires only generic notice in that it need not identify evidence specific to the individual claimant's case) and Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 134748 (Fed. Cir. 2003) (holding, inter alia, that section 3.159(b)(1) does not require notice that identifies specific evidence needed to substantiate a particular veteran's claim). Id. at 1277. The Federal Circuit also held that the Secretary's failure to provide notice to increased-rating applicants that they should submit evidence relating to "the effect that worsening has on the claimant's ... daily life" does not constitute a breach of the Secretary's duty to provide adequate notice. Id. at 1280. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 99 (2010). Therefore, section 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. Id.
As a general matter, "the effective date of an award based on ... a claim for increase[ ] of compensation ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). There are statutory and regulatory exceptions to this general rule, however. For instance, section 5110(b)(2) provides that "[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." See also 38 C.F.R. § 3.400(o )(2) (implementing section 5110(b)(2)).
38 C.F.R. section 3.157(b) provides in pertinent part:
Once a formal claim for ... compensation has been allowed ... receipt of one of the following will be accepted as an informal claim for increased benefits.... (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination ... will be accepted as the date of receipt of a claim.... The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established....
Thus, this provision "provides that an informal claim for benefits 'will' be initiated by a report of examination or hospitalization for previously established service-connected disabilities." Norris v. West, 12 Vet. App. 413, 417 (1999).
It is self-evident that the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened. Further, because this provision provides that "[t]he date of outpatient or hospital examination ... will be accepted as the date of receipt of a claim," section 3.157(b)(1) operates in conjunction with section 5110(a) to entitle such a veteran to an effective date for any increase in compensation as of the date of the examination (or, pursuant to section 5110(b)(2), up to one year prior thereto, should the examination report or other evidence demonstrate that the increase in disability was first ascertainable within that period). Massie v. Shinseki, 25 Vet. App. 123, 131-32 (2011).