**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 99-1390

[Marian Sears, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary Of Appellants Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided August 20, 2002 )

*Kenneth M. Carpenter*, of Topeka, Kansas, was on the pleadings for the
appellant.

*Leigh A. Bradley*, General Counsel; *Ron Garvin*, Assistant General
Counsel; *Joan E. Moriarty*, Deputy Assistant General Counsel; and
*Patricia Trujillo*, all of Washington, D.C., were on the pleading for
the appellee.

Before HOLDAWAY, IVERS, and STEINBERG, *Judges*.

IVERS, *Judge*, filed the opinion of the Court. STEINBERG, *Judge*,
filed a concurring opinion.

IVERS, *Judge*: Veteran Virgil G. Lawton, through his legal custodian,
the appellant, Marian Sears, appeals a May 25, 1999, decision of the
Board of Veterans\' Appeals (BVA or Board), which denied an effective
date earlier than October 26, 1995, for service connection for
post-traumatic stress disorder (PTSD). The May 1999 BVA decision
remanded the matter of service connection for a skin disorder, and that
part of the decision has not been raised to the Court on this appeal.
Pursuant to 38 U.S.C. § 7252(a), the Court has jurisdiction to consider
the current appeal, which has been timely filed. For the reasons set
forth below, the Court will affirm the Board\'s May 1999 decision.

**I. FACTS**

The veteran served in the U.S. Army from July 1968 to July 1971,
including service in Vietnam. Record (R.) at 15. After the veteran filed
his first claim for service connection for PTSD in April 1988 (R. at
90-93), he was diagnosed with the disorder in May 1988 (R. at 103). A
September 21, 1988,VA regional office (RO) decision denied the
veteran\'s claim; a September 7, 1990, BVA decision sustained that
denial. R. at 138-39, 163-67. In February 1994, the veteran had a
routine VA mental disorders examination, the report of which stated that
he was \"not competent\" for VA pension purposes. R. at 174-79. At that
time, the veteran was again diagnosed with PTSD. R. at 178. In April
1995, the veteran received care and treatment for PTSD at a VA mental
health clinic. R. at 181-85.

On October 26, 1995, the veteran sought to reopen his previously and
finally disallowed claim for service connection for PTSD. R. at 187-90.
A VA regional office (RO) decision dated August 11, 1997, granted
service connection for PTSD, evaluated as 100% disabling, effective on
the date of the veteran\'s October 1995 claim . R. at 315-17. The
veteran disagreed with the effective date of the award; he asked \"that
compensation be granted retroactively from the incurrence of the PTSD
\[c\]ondition.\" R. at 322.

In the BVA decision presently on appeal, the Board found that because a
September 1988 RO decision had denied service connection for PTSD (R. at
138-39), and a September 1990 BVA decision had affirmed that denial (R.
at 163-67), that decision had become final, and, therefore, an effective
date prior to September 1990 was not warranted. R. at 3. The Board
concluded that an effective date prior to October 26, 1995, the date
that the veteran filed his claim to reopen, was not warranted for the
veteran\'s reopened claim for service connection for PTSD. R. at 4. With
respect to the February 1994 medical examination report that diagnosed
PTSD, and the April 1995 evidence of VA treatment for PTSD, the Board
stated:

> \[N\]either of the foregoing reports served to comprise an informal
> claim for service connection for \[PTSD\] in accordance with the
> provisions of 38 C.F.R. § 3.157(b) (1998) inasmuch as such provision
> only pertains to a circumstance not incident to this aspect of the
> appeal, i.e., a situation in which a prior disallowance of
> compensation involved a service-connected condition which was not
> compensable in degree.

R. at 9.

**II. ANALYSIS**

A Board determination of the proper effective date is a finding of fact.
*See Lalonde v. West*, 12 Vet.App. 377, 380 (1999); *Hanson v. Brown*,
9 Vet.App. 29, 32 (1996). The Court reviews questions of fact using the
\"clearly erroneous\" standard of review. *Gilbert v. Derwinski*,
1 Vet.App. 49, 53 (1990); 38 U.S.C. § 7261(a)(4). In determining whether
a finding is clearly erroneous, \"this Court is not permitted to
substitute its judgment for that of the BVA on issues of material fact;
if there is a \'plausible basis\' in the record for the factual
determinations of the BVA . . . \[ the Court\] cannot overturn them.\"
*Gilbert*, 1 Vet.App. 53.

Generally,

> the effective date of an award based on an original claim, a claim
> reopened after final adjudication, or a claim for increase, of
> compensation, dependency and indemnity compensation, or pension, 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). The VA regulation concerning the effective date for
a reopened claim, 38 C.F.R. § 3.400(q), provides that the effective date
for an award of benefits based upon new and material evidence, other
than evidence from service department records, that was received after
final disallowance of a claim is the \"\[d\]ate of receipt of \[the\]
new claim or \[the\] date entitlement arose, whichever is later.\" 38
C.F.R. § 3.400(q)(1)(ii) (2001).

A.

The appellant does not assert that the Board\'s determination of the
proper effective date was \"clearly erroneous.\" *See Lalonde*, *supra*.
Instead, in her brief for this appeal, the appellant urges the Court to
interpret 38 U.S.C. § 5110(a) to find that the effective date of a
reopened claim should be the date of the original claim, not the date of
the application to reopen that claim after a prior, final adjudication.
To that end, she argues that 38 C.F.R. § 3.400(q)(1)(ii) is inconsistent
with the plain meaning of section 5110(a), and with 38 U.S.C. § 5108
(Reopening Disallowed Claims), because the regulatory provision uses the
terminology \"new claim.\" Appellant\'s Brief (Br.) at 5-14; Reply Br.
at 2.

The appellant\'s argument lacks merit, and seeks an interpretation that,
although favorable to the veteran in the present matter, would convolute
the plain meaning of the statutory and regulatory scheme for determining
effective dates. The generally applicable parts of the effective-date
statute and regulation delineate three types of \"claims\": (1) An
original claim, (2) a claim reopened after final disallowance, and (3) a
claim for an increase in benefits. *See* 38 U.S.C. § 5110(a); 38 C.F.R.
§ 3.400. The use of the term \"new claim\" in 38 C.F.R.
§ 3.400(q)(1)(ii) refers to the second of the three types of claims to
which the regulation and statute are generally applicable, i.e., a claim
reopened after final disallowance. *See* 38 C.F.R. § 3.400(q)(1)(ii)
(part of the regulation governing effective dates that applies when new
and material evidence is received after final disallowance of a claim).
Furthermore, there is no support in the law for the appellant\'s
position that the Court should read section 5110(a)\'s mandate that the
effective date for a reopened claim \"shall not be earlier than the date
of receipt of application therefor\" as referring to the date of receipt
of the ***original*** claim rather than the claim to reopen. *See Wright
v. Gober*, 10 Vet.App. 343, 345-47 (1997). In *Wright*, the Court held
that the words \"application therefor\" in section 5110(b) \"means the
application that resulted in the award of disability compensation
currently under review for an effective date\", *id.* at 347; the same
rationale applies as to section 5110(a).

The Court also rejects the appellant\'s assertion that, \"by its very
nature, a claim for reopening overcomes the finality of the previously
denied claim because it requires a thorough review of the former
disposition of the original claim.\" Appellant\'s Br. at 6. In urging
that the regulatory provision found at 38 C.F.R. § 3.400(q)(1)(ii) is
invalid, the appellant would have the Court overturn its body of
precedential law that upholds the interpretation of the relevant
language of 38 U.S.C. § 5110(a) to mean that an award granted on a
reopened claim will be effective no earlier than the date that the claim
for reopening was filed. *See* Appellant\'s Br. at 9 (citing *Flash
v. Brown*, 8 Vet.App. 332, 340 (1995); *Lapier v. Brown*, 5 Vet.App.
215, 216-17 (1993); *Spencer v. Brown*, 4 Vet.App. 283, 293 (1993),
*aff\'d*, 17 F.3d 368 (Fed. Cir. 1994); *Rowell v. Principi*, 4 Vet.App.
9, 14 (1993).

In *Spencer*, *supra*, the Court provided an in-depth analysis of the
validity of the requirement that the Secretary adjudicate a previously
and finally denied claim upon receipt of new and material evidence
relative to the claim. *Spencer*, 4 Vet.App. at 290-97. In the context
of that analysis, the Court stated the following:

> \[I\]t is made clear \[by 38 U.S.C. § 5110(a)\] that such
> \"reopening\" will not have retroactive effect relating back to the
> original claim but will have the attributes of a ***new*** claim with
> regard to effective date. Although, as noted in subpart iii., above,
> the use of \"reopening\" in prior statutory provisions may have
> connoted only adjudication of a finally denied claim on the basis of
> the original application, with any award being retroactive to the date
> of that application, the use of that term in \[§ 5110(a)\] since 1962
> and in § 5108 pursuant to the VJRA makes clear that \"reopening\" now
> refers as well to claims based on new and material evidence from
> sources other than service department reports; in essence, such claims
> are treated as new claims.

*Id*. at 297. The Court thus holds that the effective-date statute,
38 U.S.C. § 5110(a), is clear on its face with respect to granting an
effective date for an award of VA periodic monetary benefits no earlier
than the date that the claim for reopening was filed.

The appellant\'s argument that 38 U.S.C. § 5108 precludes considering a
reopened claim to be a \"new claim\" does not support her contention
regarding effective dates for awards based upon reopened claims. The
reopening of a claim is an exception to the rule of finality stated in
38 U.S.C. § 7104(b) (Jurisdiction of the Board). The rule explicitly
states: \"Except as provided in section 5108 of this title, when a claim
is disallowed by the Board, the claim may not thereafter be reopened and
allowed and a claim based upon the same factual basis may not be
considered.\" 38 U.S.C. § 7104(b); *see also* 38 U.S.C. § 7105(c)
(finality of RO decisions). Section 5108 requires that a claim that has
been disallowed be reopened \"\[i\]f new and material evidence is
presented or secured.\" 38 U.S.C. § 5108; *see* 38 C.F.R. § 3.156(a)
(2001). If the claim is reopened, then a new factual basis emerges (from
the new and material evidence along with the existing evidence), upon
which the reopened claim is to be considered. *See* *Thompson
v. Derwinski*, 1 Vet.App. 251, 253-54 (1991) (discussing of rule of
finality and new factual basis established by new and material
evidence).

This new factual basis renders the reopened claim a \"new claim\" for
purposes of the effective-date language of 38 C.F.R. § 3.400(q)(1)(ii).
Reading the regulatory provision in this manner is consistent with the
statutory framework established by 38 U.S.C. § 7104(b), regarding
jurisdiction and the rule of finality, and 38 U.S.C. § 5110(a),
regarding the assignment of effective dates. For purposes of setting
effective dates, Congress expressly specified that a claim reopened
after final disallowance is distinct from the original claim that came
before it. *See* 38 U.S.C. § 5110(a). Further, Congress expressly
prohibited, on jurisdictional grounds, consideration of a claim that has
been finally disallowed by the Board on the same factual basis. *See*
38 U.S.C. § 7104(b); *Barnett v. Brown*, 83 F.3d 1380, 1383 (holding
that section 7104(b) \"means that the Board does not have jurisdiction
to consider a claim which it previously adjudicated unless new and
material evidence is presented, and before the Board may reopen such a
claim, it must so find\"); *see also* 38 U.S.C. § 7105(c).

The statutory framework simply does not allow for the Board to reach
back to the date of the original claim as a possible effective date for
an award of service-connected benefits that is predicated upon a
reopened claim. The rule of finality regarding an original claim implies
that the date of that claim is not to be a factor in determining an
effective date if the claim is later reopened. The presence of a
reopened claim as one of three types of claims referred to in the
effective-date statute reinforces this interpretation. In light of this
harmonious analysis of the relevant statutes and the regulation, the
Court holds that the term \"new claim,\" as it appears at 38 C.F.R.
§ 3.400(q)(1)(ii), means a claim to reopen a previously and finally
denied claim.

B.

The appellant argues, alternatively, that for purposes of allowing an
effective date earlier than the date of a claim to reopen, the
regulatory provision providing effective dates for claims for increased
disability ratings should apply to claims to reopen. Appellant\'s Br. at
14-18. In making this argument, the appellant has analogized the duo of
claims for increased ratings and claims to reopen to certain *informal*
claims for increased ratings and claims to reopen.

The appellant points out that 38 C.F.R. § 3.157 treats informal claims
for increased ratings and informal claims to reopen, based upon reports
of medical examination or hospitalization, the same for purposes of
determining effective dates. Appellant\'s Br. at 14-18. She then asserts
that the effective-date provisions of 38 C.F.R. § 3.400(o)(2) (effective
dates for increases) should, therefore, apply to claims to reopen. *Id*.
The appellant contends that because 38 C.F.R. § 3.400(o)(2) provides
that the effective date for an award of benefits based upon a claim for
an increased rating can be the earliest date that it is factually
ascertainable that an increase in disability has occurred, an effective
date for an award arising from a reopened claim can be the earliest date
that it is factually ascertainable that the condition for which the
award is made existed. *Id*.

The Court will not accept the appellant\'s apparent invitation to
override the limits of the effective-date provisions presently in the
regulations. Regulatory section 3.157 applies to a defined group of
claims, i.e., as to disability compensation, those claims for which a
report of a medical examination or hospitalization is accepted as an
informal claim for an increase of a service-connected rating where
service connection has already been established. *See* 38 C.F.R. § 3.157
(2001); *Servello v. Derwinski*, 3 Vet.App. 196, 199 (1992). The
specific effective-date provisions of 38 C.F.R. § 3.157 do not supercede
or conflict with the effective-date provisions of 38 C.F.R. § 3.400 that
are applicable to claims for increased disability compensation and
claims reopened with new and material evidence. *See* 38 C.F.R.
§§ 3.400(o)(2) and (q).

Regulatory section 3.400 begins with the following: \"General: Except as
otherwise provided, the effective date . . . will be . . . .\" 38 C.F.R.
§ 3.400. Section 3.157 and the subsections of section 3.400 *provide*
*otherwise* for effective dates related to the types of claims they
respectively define. *See* 38 C.F.R. § 3.157 (report of examination or
hospitalization accepted as informal claim, and date of report accepted
as date of claim, which date is a determining factor in deciding the
effective date of an award of benefits); 38 C.F.R. § 3.400(o)(2)
(effective dates for successful claims for increases in disability
compensation); 38 C.F.R. § 3.400(q) (effective dates for successful
claims reopened with new and material evidence).

The Court holds that it was not erroneous for the Board to conclude that
no informal claims had been filed pursuant to 38 C.F.R. § 3.157. *See*
R. at 9. The Court will not override the relevant effective-date
regulatory provision in this case, 38 C.F.R. § 3.400(q), in favor of
extending the unrelated provision of 38 C.F.R. § 3.400(o)(2).

C.

The final alternative argument advanced by the appellant is that the
language of 38 C.F.R. § 3.157 prohibits the filing of an informal claim
for reopening, contrary to the pro-veteran nature of the veterans
benefits system. Appellant\'s Br. at 19-25. In making this argument, the
appellant misconstrues that regulation.

As discussed above, 38 C.F.R. § 3.157 applies to a quite-specific group
of claims for disability compensation, i.e., those that are considered
informal claims on the basis of a submission of a report from a medical
examination or hospitalization. The regulation allows for the reports to
serve as informal claims for increased disability compensation for
service-connected conditions, and as claims to reopen finalized claims
regarding service-connected conditions, presumably in an effort to gain
compensation. *See Servello*, *supra*. The regulation does not, as
alleged by the appellant, \"effectively preclude\[ \] informal claims
for reopening.\" Appellant\'s Br. at 24.

**III. CONCLUSION**

Accordingly, upon consideration of the record on appeal and the
parties\' pleadings, and for the reasons stated herein, the Court holds
that the Board\'s denial of the appellant\'s request for an earlier
effective date was not \"clearly erroneous.\" *See Lalonde*, *Hanson*,
and *Gilbert*, all *supra*. The May 25, 1999, BVA decision is AFFIRMED.

STEINBERG, *Judge*, concurring: I concur in the Court\'s decision and
join in the opinion, except with respect to the statement in part II.C.
that 38 C.F.R. § 3.157(b) \"allows for the reports\" from a medical
examination or hospitalization \"to serve as . . . ***claims to
reopen*** finalized claims regarding service-connected conditions,
presumably in an effort to gain compensation\". I write separately to
address 38 C.F.R. § 3.157(b) and the conflicted language that renders
that regulation virtually impossible to apply.

Regulatory § 3.157(b) discusses the circumstances under which, inter
alia, a report of examination or hospitalization may serve as an
informal claim for an increased rating or an informal claim to reopen.
The regulation states, in pertinent part:

> \(b\) *Claim.* Once a formal claim for pension or compensation has
> been allowed or a formal claim for compensation disallowed for the
> reason that the service-connected disability is not compensable in
> degree, receipt of one of the following will be accepted as an
> informal claim for increased benefits ***or an informal claim to
> reopen***. In addition, receipt of one of the following will be
> accepted as an ***informal claim*** in the case of a retired member of
> a uniformed service whose formal claim for pension or compensation has
> been disallowed because of receipt of retirement pay. The evidence
> listed will also be accepted as ***an informal claim*** for pension
> previously denied for the reason the disability was not permanently
> and totally disabling.
>
> \(1\) *Report of examination or hospitalization by \[VA\] or uniformed
> services. . . .*
>
> \(2\) *Evidence from a private physician or layman. . . .*
>
> \(3\) *State and other institutions. . . .*

38 C.F.R. § 3.157(b) (2001) (emphasis added). I find it virtually
impossible to divine the meaning of the emphasized words in the context
of the seemingly unconnected three sentences in subsection (b).

That part of the Court\'s opinion quoted above suggests that there can
be a claim to reopen in the case of a claim to gain compensation for a
service-connected condition. I find that language quite difficult to
follow, but, in fairness, those words appear simply to mirror the
\"confusing tapestry\" of the language of the regulation. *Hatlestad v.
Derwinski*, 1 Vet.App. 164, 167 (1991); *see also Zang v. Brown*, 8
Vet.App. 246, 255 (1995) (Steinberg, J., separate views).

The one thing that does appear to be clear about § 3.157(b) **is that,
as to a disability that has been found to be service connected --
whether or not rated as compensable -- or as to non-service-connected
pension that has been awarded, the submission of one of the types of
evidence listed in paragraphs (1), (2), or (3) of subsection (b) will
constitute an informal claim for increased benefits. 38 C.F.R.
§ 3.157(b). Otherwise, however, the regulation contains internal
contradictions that render it largely incomprehensible; in my view, this
regulation should be near the top of the list for revision, as part of a
regulatory review process that, in one form or another, has been
underway for some time at the** Department of Veterans Affairs
(VA)**,**[^1] **in order to resolve the following issues:**

**1. What is the meaning of the term \"an informal claim to reopen\" as
used in the first sentence of § 3.157(b) to describe how certain
specified evidence might be accepted? This sentence describes three
types of claims in which such evidence might be accepted for purposes of
\"reopening\", but it appears that none of those type of claims could
actually be the subject of a claim to reopen. The regulation refers
first to \"a formal claim for pension or compensation \[that\] has been
allowed\"; however, under 38 U.S.C. § 5108, a claim may be reopened only
where \"new and material evidence is presented or secured with respect
to a claim *which has been disallowed*\". 38 U.S.C. § 5108 (emphasis
added); *see also* 38 U.S.C. §§ 7104(b); 7105(c). Therefore, it appears
clear that claims that have been *allowed* are not eligible for
reopening. *Ibid*. Furthermore, as to \"a formal claim for compensation
disallowed for the reason that the service-connected disability is not
compensable in degree\", the Court has held that a claim for a
compensable rating for a service-connected condition is a claim for an
increased rating and a new claim and is not subject to the requirements,
regarding the presentation of new and material evidence, as applicable
to claims to reopen. *Proscelle v. Derwinski*, 2 Vet.App. 629, 631
(1992); *see Butts v. Brown*, 5 Vet.App. 532, 535 (1993) (en
banc).**[^2] **Therefore, it appears that \"a formal claim for
compensation disallowed for the reason that the service-connected
disability is not compensable in degree\"** may not form the predicate
for a claim to reopen, either.[^3]

2\. What is the meaning of the term \"informal claim\" in the second and
third sentences of the regulation; does that phrase refer to an informal
claim to reopen, to an informal original claim, or to both?

3\. How does the third sentence of § 3.157(b), which points out a
circumstance in which the listed evidence will be accepted as \"an
informal claim\" (apparently, as an informal claim to reopen), comport
with the first sentence of the regulation? Specifically, the provision
made in the third sentence for \"informal claim\[s\] for pension
previously denied for the reason \[that\] the disability was not
permanently and totally disabling\" describes a completely different
situation in pension law from that described in the first sentence
relating to claims for pension that have \"been allowed\". It appears
that the third sentence describes the only circumstance in which the
evidence listed in paragraphs (1), (2), and (3) will be accepted as a
claim to reopen a claim for pension, but there is no explanation as to
how the third sentence relates to the first sentence, which contains the
sole such reference in subsection (b) to a \"claim to reopen\" but
appears to relate only to the types of claims described in that
***first*** sentence.

In effect, it appears that the Secretary has failed to update this
regulation (assuming that it was coherent at one point), which was
prescribed initially in 1961 with substantially similar language, 38
C.F.R. § 3.157(b) (1962), to accord with precedential judicial
authority.[^4] Now would seem an opportune time for the Secretary to
review this regulation.

[^1]: ***See Zang* *v. Brown*, 8 Vet.App. 246, 255 (1995) (Steinberg,
    J., separate views) (listing VA regulations needing \"review and
    reevaluation by the Secretary\").**

[^2]: **The law with regard to the nature of claims for a higher rating
    evolved quite a while ago to the point where it is routinely
    considered that such a claim is a claim for an increased rating and
    is a new claim, and is not a claim to reopen. *See*, *e.g.*,
    *Spurgeon v. Brown*, 10 Vet.App. 194, 196 (1997) (\"appellant\'s
    claim for an increased rating . . . is \'a new claim\'\") (quoting
    *Cox v. Brown*, 6 Vet.App. 459, 460 (1994), and citing *Butts v.
    Brown*, 5 Vet.App. 532, 535 (1993) (en banc)); *Stanton v. Brown*, 5
    Vet.App. 563, 565 (1993) (\"claim for increased evaluation . . . is
    a new claim\") (citing, inter alia, *Proscelle*, *infra*));
    *Suttmann v. Brown*, 5 Vet.App. 127, 137 (1993) (holding that \"a
    repeat claim for a . . . rating \[of total disability based on
    individual unemployability\], where a similar claim has been
    previously and finally denied, should be viewed as a new claim\" and
    that the same \"applies to claims for service connection for the
    \[former prisoner of war (POW)\] . . . diseases listed in
    38 U.S.C.\[\] § 1112(b) and 38 C.F.R. § 3.309(c) . . . \[, which
    provide that\] any listed . . . disease becoming manifest to a
    degree of 10% or more in a former POW *at any time after separation
    from service*\" will be awarded disability compensation); *Lenderman
    v. Principi*, 3 Vet.App. 491, 492 (1992) (characterizing *Proscelle
    v. Derwinski*, 2 Vet.App. 629 (1992), as holding \"that a claim for
    an increase is a new claim, and, therefore, \[is\] not subject to
    the provisions \[that\] require that an appellant submit new and
    material evidence before a claim will be reopened\"). However, the
    first case to make this holding not only, as stated in the text
    above, involved a claim for a compensable rating for a zero-rated
    service-connected disability, but also based its conclusion that
    such a claim was not a claim to reopen on the concept that \"because
    the claimant\'s entitlement to benefits could be predicated on a
    finding that the service-connected disability had increased *since*
    the prior denial, . . . the claim was based upon facts different
    from the prior final claim.\" *Suttmann*, 5 Vet.App. at 136
    (describing holding of *Proscelle*, *supra*). In *Proscelle* itself,
    the Court had explained that \"because the veteran claims that his
    service-connected disability has undergone an increase in severity
    *since* that prior claim . . . \[, t\]he current claim is thus a new
    claim.\" *Proscelle*, 2 Vet.App. at 631. At this point, the
    proposition in the text above appears to be accepted as a truism
    without regard to whether a veteran actually asserts that his or her
    service-connected disability has increased in severity since last
    rated by VA, a factor neither discussed nor apparently present in
    *Spurgeon*, *Stanton*, or *Lenderman*, all *supra*. For example, in
    a brief filed in this Court on April 12, 2002, the Secretary
    asserted, without any qualification, citing *Spurgeon* and
    *Proscelle*, both *supra*: \"A claim for an increase is a new
    claim.\" Secretary\'s Brief at 11, *Acton v. Principi*, U.S. Vet.
    App. No. 01-0564 (Notice of Appeal filed March 28, 2001). Prior to
    November 9, 2000, when the** Veterans Claims Assistance Act of 2000,
    Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), **was
    enacted, the principal difference between an original claim and a
    claim to reopen pertained to the Secretary\'s duty to assist and the
    lesser applicability of that duty to a claim to reopen. That
    distinction is maintained in at least one major respect in the
    regulations issued on August 29, 2001, implementing the VCAA; in
    those regulations, as to claims to reopen, a VA medical examination
    will be provided \"only if new and material evidence is presented or
    secured.\"** 66 Fed. Reg. 45,620, 45,631 (Aug. 29, 2001) (amending
    38 C.F.R. § 3.159(c)(4)(iii))**.**

[^3]: **It appears that, at the time that the Secretary promulgated
    § 3.157(b) in 1961, he may have considered that claims for
    disability compensation were \"disallowed\" when service connection
    was found but a compensable rating was denied. That is because until
    1993 the Rating Schedule did not provide for a zero-percent rating
    for *every* disability for which the applicable diagnostic code did
    not specifically include a zero-percent rating. In 1993, 38 C.F.R.
    § 4.31 was amended to provide, just as it does today (38 C.F.R.
    § 4.31 (2001)), as follows:**

    > **In every instance where the schedule does not provide a zero
    > percent evaluation for a diagnostic code, a zero percent
    > evaluation shall be assigned when the requirements for a
    > compensable evaluation are not met.**

    **38 C.F.R. § 4.31 (1993) (amending former regulation, which first
    appeared in title 38 of the Code of Federal Regulations in 1965 and
    provided for \"a no-percent evaluation . . . when the required
    residuals are not shown\", 38 C.F.R. § 4.31 (1992)); *see Rabideau
    v. Derwinski*, 2 Vet.App. 141, 143 (concluding that because \"the
    schedular criteria for hypertension do not require residuals, a
    zero-percent rating would not be authorized under . . . \[38 C.F.R.
    §\] 4.31\").**

[^4]: ***See supra* note 2.**